1b(1), where the facts of a particular case are such that the
State is required to prove that the second degree
aggravated assault, N.J.S.A. 2C:12-1b(1) was committed
with a weapon. The Court in Graham called the analysis
the Court in Jones used to determine the lesser included
offense issue “flawed” because it focused upon the
“elements” of the offenses rather than applying the
standard contained in N.J.S.A. 2C:1-8d, which requires
that the lesser offense be established by proof of the same
or less than all the “facts.”
In State v. Sloane, 111 N.J. 293 (1988) reversing 217
N.J. Super. 417 (App. Div. 1987), the New Jersey
Supreme Court, overturned defendant’s conviction for
second degree aggravated assault contrary to N.J.S.A.
2C:12-1b(1), where, despite defendant’s request, the
trial court had refused to charge the jury on any assault
offense other than that of causing serious bodily injury to
another, N.J.S.A. 2C:12-1b(1). The Supreme Court
held that the resolution of the degree of injury on the facts
before it was at least “rationally debatable” and therefore
presented a jury question requiring submission of third
degree aggravated assault contrary to N.J.S.A. 2C:12-
1b(2) (attempts to or causes, knowingly or purposely,
bodily injury with a deadly weapon) to the jury.
In resolving the lesser included offense issue in Sloane
the Supreme Court relied upon N.J.S.A. 2C:1-8d(3),
which provides that an offense is an included offense
when it differs from the offense charged only in the
respect that it involved “a less serious injury or risk of
injury” or a “lesser kind of culpability, and concluded
that this provision permitted the inclusion of third
degree aggravated assault contrary to N.J.S.A. 2C:12-
1b(2) where defendant had been charged with second
degree aggravated assault contrary to N.J.S.A. 2C:12-
1b(1).
In reaching this conclusion, the Court noted that the
Commentary to the Model Penal Code, from which the
lesser included offense doctrine is drawn, recognized that
in some instances an offense that differs by lesser degree
of injury “may require proof of an element that may not
be necessary to establish the greater offense.”
See also, State v. Hunter, 194 N.J. Super. at 177
(risking widespread injury is not a lesser included offense
of aggravated assault, contrary to N.J.S.A. 2C:1b(1));
State v. Berrios, 186 N.J. Super. at 198 (N.J.S.A. 2C:12-
1b(3) constitutes a lesser included offense of N.J.S.A.
2C:12-1b(1), but N.J.S.A. 2C:39-1(5) is not necessarily
a lesser included offense of N.J.S.A. 2C:12-1b(3)); State
v. Carlos, 187 N.J. Super. at 417 (N.J.S.A. 2C:12-1b(4)
constitutes a lesser included offense of first degree
robbery)); State v. Truglia, 97 N.J. at 517 (N.J.S.A.
2C:12-1(b)(1) and N.J.S.A. 2C:39-4a do not merge));
State v. Murphy, 185 N.J. Super. at 75-76 (reckless
conduct constitutes a lesser included culpability of
purposeful and knowing conduct); State v. Mirault, 92
N.J. at 495, 499 (aggravated assault contrary to N.J.S.A.
2C:12-1b(1) merges with first degree robbery contrary
to N.J.S.A. 2C:15-1 but assault upon a police officer,
contrary to N.J.S.A. 2C:12-1b(5) does not merge with
N.J.S.A. 2C:15-1)); State v. Mincey, 202 N.J. Super. 548
(Law Div. 1985) (third degree aggravated assault under
N.J.S.A. 2C:12-1b(2) is not a lesser included offense of
second degree aggravated assault under N.J.S.A. 2C:12-
1b(1) since former requires proofs relating to deadly
weapon while latter does not).IV. DEFENSES (See also, DEFENSES, this Digest)
A. In General
It was permissible for a defendant to assert both self-
defense and accident defenses to a charge of second degree
aggravated assault, even though they would be
inconsistent, alternative defenses, because it would be
impossible to determine which facts the jury would
credit. State v. Moore, 158 N.J. 292 (1999).In State v. Colon, 298 N.J. Super. 569 (App. Div.),
certif. denied, 150 N.J. 27 (1997), the court held that any
error in failing to charge the jury on imperfect self-defense
was harmless because defendant was convicted only of
reckless aggravated assault, and imperfect self-defense
would only have protected defendant against a
purposeful and knowing finding.In prosecution for second degree aggravated assault,
contrary to N.J.S.A. 2C:12-1b(1), bifurcation is not
required where a defendant voluntarily chooses to present
inconsistent defenses, such as insanity and alibi. State v.
Haseen, 191 N.J. Super. 564 (App. Div. 1983).B. Intoxication
In State v. Green, 318 N.J. Super. 361 (App. Div.
1999), aff’d 163 N.J. 140 (2000), the court held that the
trial judge properly declined to charge the jury on
intoxication in defense to an aggravated assault charge
because no rational basis existed to conclude that
defendant’s faculties were so prostrated that he was
incapable of forming the intent to commit the crime.