On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 06-01-00003.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Cuff, Lihotz and Simonelli.
On January 4, 2006, a Salem County Grand Jury returned Indictment No. 06-01-00003 charging defendant, Phillip J. King, Jr., his brother Richie D. King, and his sister Phyllis D. King with second-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one); second-degree attempt to cause serious bodily injury, N.J.S.A. 2C:12-1b(1) (count two); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count three). Phyllis King was also charged with second-degree robbery and fourth-degree theft (counts four and five).
The Kings were tried as co-defendants before a jury. Phyllis King was acquitted of all charges. The jury could not reach a verdict as to Richie King, who later pled guilty to an amended charge of simple assault. The jury acquitted defendant of third-degree terroristic threats and second-degree aggravated assault. Defendant was convicted of the lesser-included offense of simple assault, N.J.S.A. 2C:12-1a(1), and second-degree burglary.
On November 28, 2006, Judge Forester sentenced defendant on count one to five years imprisonment with an 85 percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently with a sentence he was serving for a parole violation. On the disorderly persons offense, defendant was sentenced to a concurrent nine-month term of imprisonment.
On appeal, defendant presents these issues for our review:
POINT I. ALTHOUGH THE FACTS CLEARLY RAISED THE LESSER-INCLUDED OFFENSES OF CRIMINAL TRESPASS AND SIMPLE ASSAULT BY MUTUAL FIGHT, THE JURY WAS NOT INSTRUCTED ON EITHER OFFENSE.
POINT II. ALTHOUGH THE FACTS RAISED THE AFFIRMATIVE DEFENSES OF SELF-DEFENSE AND DEFENSE OF ANOTHER, THE JURY WAS NOT INSTRUCTED ON EITHER DEFENSE.
POINT III. TRIAL COUNSEL'S FAILURE TO RAISE THE ISSUES ADDRESSED IN POINTS I AND II DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV. THE NINE-MONTH TERM IMPOSED ON THE DISORDERLY PERSONS OFFENSE IS ILLEGAL.
The State concedes defendant's sentence on count two was entered in error and must be corrected. Nevertheless, we reverse defendant's convictions as we conclude the trial court erred in failing to charge applicable lesser-included offenses grounded in the evidence. State v. Garron, 177 N.J. 147, 180 ...