Failure to Request a Lesser-Included Jury Charge (Part 3)

Justice Timpone continued: By contrast, aggravated assault under N.J.S.A. 2C:12-1(b)1 requires proof of an attempt “to cause serious bodily injury.” The Code defines “serious bodily injury” 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.” N.J.S.A. 2C:11-1(b). Flowing from that definition, “serious bodily injury” aggravated assault under N.J.S.A. 2C:12-1(b)(1) requires a greater injury element than that in the State’s robbery charge, cf. N.J.S.A. 2C:1-8(d)(3) and must be established by proof of more facts than those needed to establish “bodily injury,” cf. N.J.S.A. 2C:1-8(d)(1). For the same reasons, aggravated assault here is not equivalent to an attempt or conspiracy to commit robbery or one of its included offenses. Cf. N.J.S.A. 2C:1-8(d)(2).

Under the circumstances of this case, aggravated assault is, at most, a related offense of the State’s robbery charge. Defendant did not request or consent to an aggravated assault charge at any stage before or during his trial. So, a sua sponte charge would have violated defendant’s constitutional grand jury presentment and notice rights.

For all the reasons discussed, the trial court had no duty to instruct the jury sua sponte on “serious bodily injury” aggravated assault. We find no plain error.

In defense counsel’s brief to our Court and during oral argument, counsel argued that other forms of aggravated assault — beyond N.J.S.A. 2C:12-1(b)(1) — may constitute lesser-included offenses of robbery. See, e.g., N.J.S.A. 2C:12-1(b)(2) (requiring the accused to attempt to cause or purposely or knowingly cause “bodily injury to another with a deadly weapon”); N.J.S.A. 2C:12-1(b)(3) (requiring the accused to recklessly cause “serious bodily injury to another with a deadly weapon”). Counsel did not raise those arguments before the trial court or Appellate Division. They are therefore not properly before this Court, and we decline to address them.

The Court made a good point regarding a sua sponte charge violating the accused’s due process rights. Justice Timpone did not have to address the good points made by the defense attorney before the Supreme Court since the trial and direct appeal attorneys did not raise them below. These arguments should eventually be addressed in a subsequent case in which the issues are properly preserved.