Finally, we note and reject the State’s argument that our opinion in Sewell affirmatively held that assault is never a lesser-included offense of robbery. In Sewell, we “determined the level of culpability necessary to convert theft into robbery.” In our discussion of the mental state that must accompany the injury or force used in the course of a theft, we considered whether robbery’s injury/force component is the equivalent of simple assault. Recognizing that “one could be found guilty of second-degree robbery in some contexts in which one could not similarly be found guilty of simple assault,” we determined that “robbery cannot be viewed merely as theft accompanied by simple assault.”
The Legislature added the words “or force” to the robbery statute, expanding the concept of robbery to include qualifying acts that do not require the perpetrator to inflict bodily injury. Id. at 146-47. Clearly then, “the shorthand understanding that robbery equals theft plus assault is inconsistent with the clear, [but admittedly] complicated, language of the [New Jersey] Code [of Criminal Justice].” Id. at 147.
Sewell should not be over-read as completely barring assault as a lesser-included offense of robbery. There may be circumstances in which the evidence adduced at trial supports a charge on assault as a lesser-included offense of robbery. Those circumstances are not before us and we comment no further. Here, we determine only that the trial court had no obligation to charge the jury sua sponte on aggravated assault as a lesser-included offense of the State’s robbery charge.
We reverse the judgment of the Appellate Division and reinstate defendant’s convictions.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.