2C:12-1b(4). The Court expressly disapproved the
contrary holding in State v. Diaz, 190 N.J. Super. 639
(Law Div. 1983). The phrase “whether or not the actor
believes the gun to be loaded,” does not refer to the
condition of the gun, but rather merely negates the
“possible defense that because the actor believed the gun
was unloaded he cannot be found to have the required
culpability, knowledge.”
In State v. Carlos, 187 N.J. Super. 406 (App. Div.
1982), certif. denied, 93 N.J. 297 (1983), the Court held
that fourth degree aggravated assault, contrary to
N.J.S.A. 2C:12-1b(4) is a lesser included offense of first
degree robbery contrary to N.J.S.A. 2C:15-1. Carlos held
that the robbery conviction should be molded and
reduced to a conviction for aggravated assault since the
conviction for the greater offense was not justified and no
prejudice to defendant would result even though the
lesser included offense was not charged to the jury.
Further, the improper conviction on two counts of
robbery because of a lack of a taking from two individuals
present at the robbery of two others, did not taint the
guilty verdicts for aggravated assault, attempted
aggravated assault and possession of a handgun without
a permit.
Convictions for aggravated assault by knowingly
pointing and discharging a firearm and attempting to
cause serious bodily injury, contrary to N.J.S.A. 2C:12-
1b(1) and 2C:12-1b(4), do not merge with possession of
a handgun with the purpose of using it unlawfully against
another, contrary to N.J.S.A. 2C:39-4a. State v. Truglia,
97 N.J. 513, 517 (1984).
(5) A person is guilty of aggravated assault, contrary
to N.J.S.A. 2C:12-1b(5), if he commits a simple assault
upon a variety of persons, including law enforcement
officer, paid or volunteer fireman, any person engaged in
emergency first aid or medical services, school bus driver,
a school board member, employee, administrator,
teacher or other employee of the school board, any
employee of the Division of Youth and Family Services,
any Justice of the Supreme Court, judge of the Superior
Court, Tax Court or municipal judge or any operator of
a motorbus while such person is in uniform or is
otherwise identifiable as being on duty. A defendant is
guilty of a third degree crime if the victim suffers bodily
injury and is guilty of a fourth degree crime if the victim
does not.
In State v. Doss, 310 N.J. Super. 450 (App. Div.),
certif. denied, 155 N.J. 589 (1998), the court held that a
self-defense charge, in support of a claim that police used
excessive force, was unwarranted because the record failed
to support the defense. The court left open the
possibility of raising self defense in response to a claim of
excessive police force.State v. Casimono, 250 N.J. Super. 173 (App. Div.
1991), certif. denied, 127 N.J. 558 (1992), held that an
unconstitutional detention or search would not bar a
conviction for an assault, escape or other offense
committed in response to unlawful police action, as it
would give defendants an intolerable carte blanche to
commit further offenses.In distinguishing between simple assault, contrary to
N.J.S.A. 2C:12-1a(1) and aggravated assault, contrary to
N.J.S.A. 2C:12-1b(5)(a), the court held that the status of
the victim as a police officer is the pivotal difference. State
v. DiCosmo, 188 N.J. Super. 298, 300-301 (Law Div.
1982). DiCosmo also held that where the indictable
offense of aggravated assault, contrary to N.J.S.A. 2C:12-
1b(5)(a), is administratively downgraded to the
disorderly persons offense of simple assault, the
defendant is ineligible for pretrial intervention. See also
State v. Moll, 206 N.J. Super. 257 (App. Div. 1986) (the
trial court erred in omitting from his charge the second
sentence of N.J.S.A. 2C:2-2b(1), since an awareness of
the attendant circumstance that the victim is a law
enforcement officer acting in the performance of duty
while in uniform or exhibiting evidence of his authority
is an essential element of the offense).In State v. Murphy, 185 N.J. Super. 72 (Law Div.
1982), defendant was charged with, inter alia,
committing an aggravated assault upon a police officer,
contrary to N.J.S.A. 2C:12-1b(5)(a). The Law Division
held that it was proper to alternatively charge both
recklessness and knowledge, as reckless conduct
constitutes a lesser type of culpability than purposeful
and knowing conduct.A defendant’s use of force or infliction of injury upon
a police officer, while that defendant is in the course of
committing a burglary and theft inside the victim’s
home, elevates the theft to robbery contrary to N.J.S.A.
2C:15-1. Since identical proofs were utilized to sustain
the aggravated assault charge contrary to N.J.S.A. 2C:12-
1b(1) and the first degree robbery charged contrary to
N.J.S.A. 2C:15-1, the same physical acts necessarily gave
rise to the distinct grade of both offenses, and the
“predominate legislative purpose of both offenses is to
punish violent thefts,” aggravated assault contrary to
N.J.S.A. 2C:12-1b(1) was deemed to merge into first
degree robbery contrary to N.J.S.A. 2C:15-1. Had the