VI. RENUNCIATION OF CRIMINAL PUR-
POSE, N.J.S.A. 2C:5-1d
To be voluntary, the abandonment of criminal
conduct must reflect a change in the defendant’s purpose
or a change of mind that is not influenced by outside
circumstances. To be complete the abandonment must
be permanent, not temporary or contingent. And, of
course, the claimed renunciation must have resulted in
avoidance of the crime. State v. Alston, 311 N.J. Super.
113, 121-22 (App. Div. 1998).
VII. DEFENSES
Impossibility of commission of the offense itself by
reason of some condition unknown to perpetrator at the
time of the offense is not a defense. See State v. Tropiano,
154 N.J. Super. 452 (App. Div. 1977); see also State v.
Moretti, 52 N.J. 182, 188 (1968), cert. denied, 313 U.S.
952 (1968). Thus, in State v. Meisch, supra, 86 N.J.
Super. 279, the Court found that it was not essential for
the State to show that there was some item of personal
property in the desk drawer into which the defendant
thrust his hand in order to establish that the defendant
was guilty of attempted larceny.
Defendant, who had tested positive for HIV, could
be found guilty of attempted murder upon proof that he
intended to kill a corrections officer by biting him,
regardless of whether it is medically possible for bite to
transmit HIV; under the statute governing criminal
attempts, it was sufficient that defendant himself
believed he could cause death by biting his victim and
that he intended to do so. State v. Smith, 262 N.J. Super.
487, 505 (App. Div. 1993), certif. denied, 134 N.J. 476
(1993).
It would appear that voluntary intoxication may be
a defense to an attempted sexual assault, according to
dicta in State v. Stasio, 78 N.J. 467, 482 (1979).
VIII. SENTENCING
Pursuant to N.J.S.A. 2C:1-8d(2), a defendant may
be convicted of an offense included in an offense charged
whether or not the included offense is an indictable
offense. An offense is so included when it consists of an
attempt or conspiracy to commit the offense charged or
to commit an offense otherwise included therein. State v.
Velez, 176 N.J. Super. 136 (App. Div. 1980), certif.
denied, 85 N.J. 504 (1981).
An attempt will merge into and is an included offense
of the completed conduct. For example, attempted theft
is an included offense of theft because it contemplates the
conduct which goes beyond mere preparation to commit
theft but stops short of completion. For purposes of
punishment, no distinction is made. State v. Russo, 243
N.J. Super. 383, 410-411 (App. Div. 1990), certif.
denied, 136 N.J. 322 (1991); State v. Carlos, 187 N.J.
Super. 406, 416 (1982), certif. denied, 93 N.J. 297
(1983).Pursuant to N.J.S.A. 2C:5-4, an attempt to commit
a crime of the first degree is a crime of the second degree,
except that an attempt to commit murder is a crime of the
first degree. All other inchoate crimes are of the same
degree as the most serious crimes attempted.The unlikelihood of an attempt to culminate in the
commission of a crime may be considered by the
sentencing judge in imposing sentence for a crime of a
lower grade or degree if neither the particular conduct
charged nor the defendant presents a public danger.
N.J.S.A. 2C:5-4b.Convictions for attempted aggravated sexual assault
and attempted sexual assault do not provide the requisite
foundation to require the enhanced penalties under
N.J.S.A. 2C:13-1c(2) (kidnaping). For the enhanced
penalty section to apply, the defendant must have
committed an enumerated crime against the victim;
attempts to commit such crimes are not included within
the statute. State v. Smith, 279 N.J. Super. 131, 142
(App. Div. 1995).An attempt to cause death or serious bodily injury,
without causing either, and without the use or
threatened use of a deadly weapon, does not meet the
statutory definition of violent crime and thus is
insufficient to subject a defendant to a “No Early Release
Act” sentence, N.J.S.A. 2C:43-7.2. State v. Staten, 327
N.J. Super. 349, 354 (App. Div. 1999).IX. SCOPE OF APPELLATE REVIEW
The scope of appellate review of factual
determinations of the trial court is “extremely narrow,”
but a trial judge’s interpretation of the law and legal
consequences that flow from established facts are not
entitled to any special deference. State in the Interest of
S.B., 333 N.J. Super. 236, 241 (App. Div. 2000). Thus,
the Appellate Division will review the entire record to
determine whether there is sufficient credible evidence to
support an adjudication of guilt of committing an
aggravated assault based on the attempt to cause bodily
injury upon a teacher. Ibid.