The Court continued: It was not until his appeal that defendant argued the trial court erred in not charging the jury sua sponte on aggravated assault, N.J.S.A. 2C:12-1(b)1. Reversal would be appropriate only if the basis for a lesser-included-offense charge were to “jump off the pages” of the record.
Although we reaffirm that the clearly indicated standard is the appropriate lens through which to review any obligation to charge the jury sua sponte on a lesser-included offense, we need not apply that standard here. On direct appeal, defendant only challenged the lack of an instruction concerning “serious bodily injury” aggravated assault, N.J.S.A. 2C:12-1(b)1. The New Jersey Code of Criminal Justice provides that an offense is a lesser-included offense if:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
[N.J.S.A. 2C:1-8(d) (emphases added).] Section 1-8(d) “calls for a comparison of the statutory definitions of the respective offenses to ascertain whether they have common or overlapping elements that require proof of identical facts.”
Under N.J.S.A. 2C:15-1(a), a person is guilty of robbery if that person “inflicted bodily injury or used force” on the victim “in the course of committing a theft.” The statute provides that robbery “is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.” N.J.S.A. 2C:15-1(b). Here, the State charged robbery as a first-degree crime exclusively on the “deadly weapon” prong. As a result, based on its indictment, the State had to prove that defendant: (1) “inflicted bodily injury or used force” on the victim; and (2) possessed, used, or threatened to use “what appeared to be a knife” during the commission of the robbery.
The Supreme Court’s opinion demonstrates why the Appellate Division applied the “wrong standard” in assessing whether the Court should have sua sponte charged aggravated assault as a lesser-included offense. The “jumped off the pages” test is not a clear standard. Moreover, the appellate attorney on direct appeal before the appellate division did not even raise the issue.