Before Judges Kestin and Steinberg.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 22, 2000
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County.
In a jury trial, defendant was acquitted of charged burglary and aggravated assault and convicted of lesser included offenses, respectively fourth degree criminal trespass and disorderly persons simple assault. The trial court sentenced defendant to prison terms of eighteen months on the criminal trespass conviction and six months on the simple assault charge to be served concurrently with each other and consecutively to a sentence for violation of parole. Appropriate statutory assessments and penalties were ordered.
The State's case at trial was presented through three witnesses:
the two victims and a police officer. Defendant did not testify; and no other witnesses appeared on his behalf.
On January 21, 1998, Albert Lloyd was home in his ground level apartment in Jersey City, where he resided with his mother, Gloria Lloyd. At approximately 12:30 a.m., as he sat in his kitchen watching television, Mr. Lloyd heard his neighbor's dogs barking. Mr. Lloyd then heard a sound as if someone were climbing the fence in his backyard. He testified that when he opened the back door to look into the yard he heard a gate open and concluded that someone was coming towards the door. Mr. Lloyd then closed the door and told his mother to call the police. According to Ms. Lloyd, after hearing some commotion in the backyard she went to the kitchen to investigate. She saw her son in front of the door and defendant standing on the other side.
Mr. Lloyd testified that defendant appeared a "little hysterical" and "his eyes looked like they were bugging out of his head." According to Mr. Lloyd, defendant told him that he was being chased by someone. Mr. Lloyd told defendant to "calm down" and informed him that the police had been called.
According to Mr. Lloyd, at this point defendant put his fist through the glass door and forced his way into the kitchen. A struggle ensued between defendant and Mr. Lloyd, while Ms. Lloyd was looking on and speaking with a 911 operator. Eventually, Mr. Lloyd was able to subdue defendant until the police arrived. As a result of the struggle, Mr. Lloyd sustained injuries to his shoulder and the knuckles on his right hand.
About five minutes after Ms. Lloyd had called the police, Officer Louis Karras of the Jersey City Police Department arrived on the scene with his partner. Officer Karras testified that upon entering the apartment he saw Mr. Lloyd and defendant grappling and noticed that there was a considerable amount of blood on both individuals. Karras ordered defendant to get on the ground, handcuffed him, and called for medical assistance because defendant had a severe cut on his wrist. According to Karras, while defendant was handcuffed he was screaming at everyone in the house, yelling that he had been shot at and screaming "Why don't you just kill me? Just kill me."
On appeal, defendant contends, inter alia, that the trial court committed plain error by failing sua sponte to charge the jury on defiant trespass, N.J.S.A. 2C:18-3b, a varietal of criminal trespass, as a lesser included offense of unlicensed entry into a structure, N.J.S.A. 2C:18-3a. We hold that no such charge was warranted.
In general, for a crime to be considered a lesser included offense it must either "be established by proof of the same or less than all the facts used to establish the greater charge, N.J.S.A. 2C:1-8d(1), or it must differ from the crime charged only through a lower degree of risk of injury to the victim or a lower degree of culpability of the defendant, N.J.S.A. 2C:1-8d(3)." State v. Smith, 136 N.J. 245, 249-50 (1994). Yet, the facts must also
provide "a rational basis for a verdict convicting the defendant of the included offense" instead of the offense charged in the indictment. N.J.S.A. 2C:1-8e. In order to charge a lesser-included offense, there must be a basis for finding the defendant not guilty of the greater offense, as well as guilty of the lesser offense. [State v. Pantusco, ___ N.J. Super. ___, ___ (App. Div. ...