On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 03-05-646.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and Seltzer.
Defendant was indicted on charges of aggravated manslaughter, N.J.S.A. 2C:11-4a, as the result of the death of John Campbell following a fight at Rick and Bill's Tavern in Edison Township. After a four-day trial, the judge rejected defendant's request to charge the lesser included offense of simple assault, N.J.S.A. 2C:12-1a(1), and submitted the case for consideration of the original charge of aggravated manslaughter and the lesser included offenses of reckless manslaughter, N.J.S.A. 2C:11-4b(1), and aggravated assault, N.J.S.A. 2C:12-1b(1) and -1b(7). Defendant was acquitted of the original charge but convicted of reckless manslaughter. He appeals both the conviction and the custodial sentence of twelve years subject to the parole restrictions of N.J.S.A. 2C:43-7.2. We reverse and remand for a new trial.
On appeal, defendant asserts
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUEST TO CHARGE THE JURY ON SIMPLE ASSAULT AS A LESSER INCLUDED OFFENSE.
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL BASED UPON THE TRIAL JUDGE'S QUESTIONING OF THE STATE'S MEDICAL EXAMINER OVER DEFENDANT'S COUNSEL'S OBJECTION THAT INADVERTENTLY "OPENED THE DOOR" TO NEW AREAS OF QUESTIONING.
III. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM UPON DEFENDANT WITHOUT CONSIDERATION TO THE REAL TIME CONSEQUENCES OF THE SENTENCE.
We find the failure to charge simple assault requires that we reverse and remand for a new trial. Accordingly, we do not address defendant's other arguments.
We begin our analysis with a summary of the principles governing defendant's request that the jury be instructed to consider simple assault. A defendant "is entitled to a charge on all lesser included offenses supported by the evidence." State v. Short, 131 N.J. 47, 53 (1993); State v. Purnell, 126 N.J. 518, 531 (1992) (citing State v. Ramseur, 106 N.J. 123, 271 n.62 (1987)). Although "included offenses" are defined by N.J.S.A. 2C:1-8d, when a defendant seeks a charge on a lesser uncharged crime, "strict adherence to the definition of 'included' under N.J.S.A. 2C:1-8d 'is less important than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser.'" State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Brent, 137 N.J. 107, 117 (1994)). "Accordingly, when a lesser offense is requested by a defendant, as in this case, 'the trial court is obligated, in view of defendant's interest, to examine the record thoroughly to determine if the rational-basis standard has been satisfied.'" Ibid. (quoting State v. Crisantos, 102 N.J. 265, 278 (1986)). "The failure to instruct the jury on a lesser included offense that a defendant has requested and for which the evidence provides a rational basis warrants reversal of a defendant's conviction." Id. at 397-98 (citing Brent, supra, 137 N.J. at 118).
The question then becomes "whether any view of the evidence in this case presented a rational basis for the jury to acquit [defendant] of [reckless manslaughter] and, alternatively, to convict him of [simple assault]." Id. at 398. We review the evidence in the light most favorable to the defendant since we are determining whether any rational view of the evidence would support an acquittal of the manslaughter charge and a conviction for simple assault.
The victim died after having been struck during a dispute at Rick and Bill's Tavern on March 6, 2003. Five individuals who were present testified. Dina Manganaro was bartending on March 6th and testified that she saw scuffling and I turned and they were in a row with a pool stick across all of them, and I went . . . [defendant], John Magdon, [the victim], Jack Campbell, Karen [Hennessy] and Kraig [Sorenson] in that --that order, and there was a pool stick across them and they were all like scuffling and pulling and yelling and arguing, and then it just started to get worse . . . and then I saw [defendant's] fists going towards [the victim] . . . .
On direct examination, Manganaro was at first "not sure how many times" defendant struck the victim. She was then asked, "Did Anthony Magdon hit John Campbell more than once?" and responded,
"I would say so, yes." However, she was unable to remember if defendant struck the victim more than twice. The prosecutor sought to refresh her recollection with a statement she had ...