elderly person as defined in P.L. 1977, c.239
(C.52:27G-2).
A person is guilty of fourth degree assault, pursuant
to N.J.S.A. 2C:12-1e, if he commits a simple assault as
defined in subsection a. of this statute and acts with a
purpose to intimidate an individual or group of
individuals because of race, color, religion, gender,
handicap, sexual orientation or ethnicity.
In State v. Crumb, 277 N.J. Super. 311 (App. Div.
1994), certif. denied, 153 N.J. 215 (1998), the court held
that N.J.S.A. 2C:12-1e is inapplicable if a defendant is
convicted of a greater offense than simple assault.
With regard to extended term sentences for biased
crimes, see N.J.S.A. 2C:44-3e and State v. Apprendi, 304
N.J. Super. 147 (App. Div. 1997).
III. LESSER INCLUDED OFFENSES, MERGER
AND INTERRELATIONSHIP WITH OTHER
CRIMES (See also, MERGER, this Digest)
A. Merger
A conviction for terroristic threats should be merged
into an aggravated assault conviction. State v. Doss, 310
N.J. Super. 450 (App. Div.), certif. denied, 155 N.J. 589
(1998).
In State v. Mance, 300 N.J. Super. 37 (App. Div.
1997), the court held that it was not error to decline to
merge a possession of a weapon for an unlawful purpose
conviction into an aggravated assault conviction where
the unlawful purpose was broader than the specified
assault.
A conviction for second degree aggravated assault did
not merge into a conviction for first degree robbery
because a finding of serious bodily injury was not an
element to the robbery conviction. State v. Oliver, 298
N.J. Super. 538 (Law Div. 1996), aff’d 316 N.J. Super
592 (App. Div. 1998), aff’d, 162 N.J. 580 (1998).
In State v. Montague, 55 N.J. 387 (1970), modifying
101 N.J. Super. 483 (App. Div. 1968), the State’s
evidence demonstrated that the defendant resisted an
arresting officer, scuffled with him, removed his gun,
pointed it at the officer and threatened to shoot him.
Defendant was charged with both assault and battery
upon a police officer and with threatening to take the life
of another. The court disagreed with his argument that
the latter offense was preempted by the more specific
statute, which condemned assault upon a police officer,
and held that the two offenses were separate crimes which
did not merge.B. Included Offenses
In State v. Whittaker, supra, the court held that
aggravated assault with a machete is not a lesser included
offense of aggravated assault with a firearm. Rather, they
are the same crime 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.It was not error for the trial court to fail to charge sua
sponte, simple assault as a lesser included offense of
aggravated assault because it may have been defendant’s
strategical decision not to request the charge. State v.
Doss, supra, 310 N.J. Super. 450 (App. Div. 1998).In State v. Farrell, 250 N.J. Super. 386 (App. Div.
1991), the court held that simple assault should be
charged as a lesser included offense of aggravated assault
whenever there is a rational basis to do so.Harassment, N.J.S.A. 2C:33-4, is a lesser included
offense of simple assault. State v. Berka, 211 N.J. Super.
717 (Law Div. 1986). That a less serious injury, i.e.,
alarm as opposed to fear, suffices to establish its
commission confirms its lesser included status.In State v. Jones, 214 N.J. Super. 68 (App. Div. 1986),
certif. denied, 107 N.J. 102 (1987), the defendant
challenged his conviction due to the trial court’s
supplemental instruction charging fourth degree
aggravated assault, N.J.S.A. 2C:12-1b(3), after the jury
had deliberated for seven hours and announced its
deadlock on the original charge of second degree
aggravated assault, N.J.S.A. 2C:12-1b(1). The Appellate
Division held that the fourth degree crime was not a lesser
included offense of the second degree crime as the former,
but not the latter, requires that the bodily injury be
inflicted with a deadly weapon.In State v. Graham, 223 N.J. Super. 571 (App. Div.),
certif. denied, 111 N.J. 620 (1988), a different panel of
the Appellate Division, which criticized the Court’s
analysis in Jones, held that fourth degree aggravated
assault, N.J.S.A. 2C:12-1b(3), is a lesser included offense
of second degree aggravated assault, N.J.S.A. 2C:12-