Expert testimony by a psychiatrist is unnecessary to
establish that a victim experienced mental or nervous
shock, which constitutes actual bodily harm. State v.
Diaz, 188 N.J. Super. 504 (App. Div. 1983).
In State in the Interest of A.W.S., 182 N.J. Super. 334,
340 (J. & D.R.Ct. 1980), aff’d 182 N.J. Super. 278 (App.
Div. 1981), a conviction for aggravated assault with an
automobile was sustained where the defendant drove
recklessly, manifesting an extreme indifference to the
value of human life and where injury was sustained by the
victim. Furthermore, no double jeopardy violation
existed where the defendant was prosecuted for
aggravated assault after having been found guilty in
municipal court for reckless driving.
(2) N.J.S.A. 2C:12-1b(2), provides that a person is
guilty of third degree aggravated assault if he “attempts
to cause or purposely or knowingly causes bodily injury
to another with a deadly weapon.”
Aggravated assault with a machete is not a lesser
included offense of aggravated assault with a firearm.
Rather, they are the same crime committed with different
instrumentalities. A defendant could be found guilty of
one even if the indictment only charged the other, and it
was not error to instruct the jury on both. However,
defendant’s conviction of possession of a revolver with the
purpose to use it unlawfully against the victim was not
sustainable because the jury acquitted defendant of
aggravated assault with the revolver, the only purpose the
jury was instructed to consider on that count. State v.
Whittaker, 326 N.J. Super 252 (1999).
Where a person does not cause serious bodily injury
but only attempts to do so, he is guilty of N.J.S.A. 2C:12-
1b, second degree aggravated assault, only if the attempt
to cause that result is purposeful. See State v. Battle, 209
N.J. Super. 255 (App. Div. 1986), certif. denied, 105 N.J.
560 (1986); State v. McAllister, 211 N.J. Super. 355
(App. Div. 1986).
In State v. Berrios, 186 N.J. Super. 198 (Law Div.
1982), the court held that N.J.S.A. 2C:12-1b(3)
(recklessly causing bodily injury with a deadly weapon)
is a lesser included offense of N.J.S.A. 2C:12-1b(1) and
(2), and can be so charged, at least where there is notice
in the indictment relating to the deadly weapon.
N.J.S.A. 2C:1-8d(1), (3)(e). On the other hand,
possession of a knife under circumstances not manifestly
appropriate for such lawful use as it may have, contrary to
N.J.S.A. 2C:39-5d, is not necessarily a lesser included
offense to recklessly causing bodily injury with a deadly
weapon contrary to N.J.S.A. 2C:12-1b(3), because each
conviction required proof of a fact that the other did not
and the proofs revealed possession beyond and unrelated
to the assault.(3) N.J.S.A. 2C:12-1b(3), provides that recklessly
causing bodily injury with a deadly weapon constitutes
a fourth degree offense.(4) N.J.S.A. 2C:12-1b(4), provides that it is a crime
of the fourth degree to knowingly, under circumstances
manifesting extreme indifference to the value of human
life, point a firearm as defined in N.J.S.A. 2C:39-1f, at or
in the direction of another, whether or not the actor
believes it to be loaded.In State v. Henries, 306 N.J. Super. 512 (App. Div.
1997), there was no factual basis for a guilty plea as an
accomplice to aggravated assault pursuant to N.J.S.A.
2C:12-1b(4) where the defendant testified only that “he
would say” codefendant had a gun and pointed it at
another individual.In State v. Orlando, 269 N.J. Super. 116 (App. Div.
1993), certif. denied, 136 N.J. 30 (1994), the court held
that an inoperable antique firearm supported a charge of
aggravated assault because the weapon had not
completely and permanently lost the characteristics of a
real gun. Moreover, the weapon did not have to be
recovered or produced in court to sustain the conviction.In State v. Robinson, 253 N.J. Super. 346 (App. Div.),
certif. denied, 130 N.J. 6 (1992), the court held that there
was sufficient evidence defendant acted knowingly under
circumstances manifesting extreme indifference to
human life where defendant gave a gun to codefendant
yet claimed he believed the gun to be inoperable.A person can be guilty of committing aggravated
assault under N.J.S.A. 2C:12-1b(4), only if he is aware
that it is practically certain that his conduct will result in
the pointing of a firearm at or in the direction of another
person. It is reversible error where the trial court failed to
instruct the jury that to find defendant guilty, it had to
first find that defendant was aware that he was pointing
the firearm at persons other than the shooting victim.
State v. Clausell, 121 N.J. 298 (1990)In State v. Bill, 194 N.J. Super. 192, 198 (App. Div.
1984), the Appellate Division held that a gun need not
be loaded in order for a perpetrator to be convicted of
fourth degree aggravated assault contrary to N.J.S.A.