State v. Battle
| Decision Date | 08 April 1986 |
| Citation | 507 A.2d 297,209 N.J.Super. 255 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Louis BATTLE, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Thomas S. Smith, Jr., Trenton, Acting Public Defender, for defendant-appellant (Mark P. Stalford, Ocean, Designated Counsel, of counsel and on brief).
W. Cary Edwards, Oakland, Atty. Gen., Trenton, for plaintiff-respondent (Gerard Boruch, Deputy Atty. Gen., Trenton, of counsel and on brief).
Before Judges PRESSLER, BILDER and GRUCCIO.
The opinion of the court was delivered by
PRESSLER, P.J.A.D.
Tried by a jury, defendant Louis Battle was convicted of a charge of second degree robbery in violation of N.J.S.A. 2C:15-1 and a charge of aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1). He was sentenced to consecutive terms of ten years, each subject to a parole ineligibility period of five years.
The charges arose out of a sidewalk purse-snatching. The victim, a small and frail woman in her sixties, testified that she was accosted by defendant, who threw her to the ground, grabbed her handbag from her arm, and fled. The victim sustained bruises and other soft tissue injuries. Defendant was indicted for the two crimes of which he was convicted.
Defendant's first ground of appeal challenges the separate conviction for aggravated assault. We agree that that conviction must be vacated. N.J.S.A. 2C:12-1(b)(1) defines that crime as one in which the actor
[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury. * * *
Serious bodily injury is defined in N.J.S.A. 2C:11-1(b) as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."
Recognizing that the injuries actually sustained by the victim did not meet the definition of serious bodily injury, the trial judge instructed the jury that it could nevertheless convict defendant of aggravated assault if it found that defendant had attempted to cause serious bodily injury. He then explained "attempt" consistently with N.J.S.A. 2C:5-1(a), which provides as follows:
Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;
(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
We are satisfied that although the trial judge's understanding of the law was correct, there were no facts adduced at trial which could have warranted a finding by the jury that defendant, beyond a reasonable doubt, was guilty of an attempt to cause his victim serious bodily harm. His intent was not to cause serious bodily harm but to obtain his victim's purse as quickly and with as little resistance as possible. In so doing, he displayed a brutish and reckless indifference to her physical safety. That indifference cannot, however, automatically be equated with the intent, plan, design or purpose which is a requisite element of an attempt to commit a crime. We point out that extreme indifference to another's physical safety may, under N.J.S.A. 2C:12-1(b)(1), itself satisfy the definition of aggravated assault, but it does so only if serious bodily injury ensues. If the extreme indifference characterizing the assault does not result in serious bodily injury, the assault cannot be elevated to the status of an aggravated assault merely by regarding extreme indifference as an attempt to inflict serious bodily injury. These are not synonymous concepts.
The so-called attempt here was, as a matter of this record, nothing different from extreme indifference which fortunately, however, did not result in serious bodily injury. Accordingly, the defendant's conviction for the crime of aggravated assault must be vacated.
Defendant did, of course, physically assault his victim in snatching her purse. But that assault, in the circumstances here, was neither a separate offense nor a lesser included offense of a separate crime of aggravated assault. It was,...
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