State v. Allen Alexander

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(NOTE: The status of this decision is Unpublished.)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Allen Alexander (A-49-16) (078515)

Argued January 3, 2018 -- Decided April 30, 2018

TIMPONE, J., writing for the Court.

In this appeal, we address whether the trial court erred when it failed to instruct a jury sua sponte on
aggravated assault as a lesser-included offense of robbery.

The victim, Ernesto Espinal, and defendant, Allen Alexander, provided differing accounts of the incident
that occurred on July 4, 2012. According to Espinal, he was walking alone to catch a train when defendant and three
other individuals confronted him. Defendant ordered that Espinal give him twenty dollars. Espinal ignored the
demand and continued walking. Suddenly, defendant grabbed Espinal around his neck and commanded another
individual to “cut” Espinal. Defendant’s associate cut Espinal across his forehead with a knife while defendant
continued to hold Espinal’s neck. Defendant and the others then left without taking any money from Espinal.

According to defendant, he and three of his friends were walking together when he bumped into Espinal.
Espinal made a facial expression and said “something in Spanish.” Believing Espinal had said “nothing nice,”
defendant confronted Espinal. Espinal and defendant exchanged profanities. Defendant testified that one of his
friends “tried to jump in it,” but defendant grabbed his friend and told him to “leave it alone.” His friend pushed
defendant away and punched Espinal. Defendant and his friends walked away. According to defendant, he never
asked Espinal for money and he did not see anyone go through Espinal’s pockets or take Espinal’s wallet. He
further testified that he did not see a weapon in his friend’s hand when his friend punched Espinal.

An Essex County Grand Jury returned an indictment against defendant charging him with second-degree
conspiracy to commit robbery, first-degree robbery, fourth-degree unlawful possession of a weapon, and third-
degree possession of a weapon for an unlawful purpose. The indictment did not charge defendant with aggravated
assault. The State’s case against defendant went to trial before a jury under a theory of accomplice liability. At the
close of the evidence, the court conducted a charge conference. At no point did either party request an aggravated
assault charge.

The trial court instructed the jury that “[a] person is guilty of robbery if in the course of committing a theft
he knowingly inflicts bodily injury or uses force upon another.” It then explained each element the State had to
prove beyond a reasonable doubt to sustain a robbery conviction. Later, the court instructed: “Robbery is a crime of
the second degree except that it is a crime of the first degree if the actor is armed with or uses or threatens the
immediate use of a deadly weapon. In this case the State must prove beyond a reasonable doubt that the defendant
was armed with a deadly weapon while in the course of committing the robbery.” Defense counsel neither requested
an aggravated assault charge nor objected to its omission from the trial judge’s jury instructions. The jury convicted
defendant of all charges.

Defendant appealed his convictions. An Appellate Division panel reversed and remanded for a new trial.
The panel observed that, even absent requests for charges or objections to charges, trial judges have an independent
obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could
convict on the lesser while acquitting on the greater offense. The panel concluded that “there is a rational basis in
the evidence for the jury to acquit defendant of robbery and conspiracy to commit robbery, as well as to convict
defendant of aggravated assault.” The Court granted the State’s petition for certification.
229 N.J. 593 (2017).

HELD: Under the circumstances of this case, aggravated assault is, at most, a related offense of the State’s robbery
charge. 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.

1
1. A trial court’s decision to charge on a lesser-included offense is governed by
N.J.S.A. 2C:1-8(e). Under that statute,
the trial court cannot charge a jury on “an included offense unless there is a rational basis for a verdict convicting the
defendant of the included offense.”
N.J.S.A. 2C:1-8(e). A party must request a charge or object to an omitted charge at
trial for the rational basis test to apply. In the absence of a request or an objection, courts apply a higher standard,
requiring the unrequested charge to be clearly indicated from the record. Trial courts have an independent duty to sua
sponte charge on a lesser-included offense only where the facts in evidence clearly indicate the appropriateness of that
charge. The evidence supporting a lesser-included charge must “jump[] off the page” to trigger a trial court’s duty to
sua sponte instruct a jury on that charge. State v. Denofa,
187 N.J. 24, 42 (2006). In State v. Funderburg, the Court
“decline[d] to impose” a “burdensome requirement on trial courts” to carefully examine every piece of the record “to
see if some combination of facts and inferences might rationally sustain a [lesser-included] charge” and noted that not
“every potential lesser-included offense must be charged to the jury.”
225 N.J. 66, 83 (2016). In contrast to lesser-
included offenses, a trial court may instruct the jury on a related offense only when the defendant requests or consents
to the related offense charge, and there is a rational basis in the evidence to sustain the related offense. (pp. 11-15)

2 Just because a charge meets the rational basis test does not mean it meets the clearly indicated standard. The facts of
this case call for review under the higher, clearly indicated standard. Defendant had several opportunities to request an
aggravated assault charge but failed to do so. It was not until his appeal that defendant argued the trial court erred in
not charging the jury sua sponte on aggravated assault. Reversal would be appropriate only if the basis for a lesser-
included-offense charge were to “jump[] off the page[s]” of the record. Denofa,
187 N.J. at 42. The Court reaffirms
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, but does not apply that standard here. (pp. 15-17)

3. 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). Under
N.J.S.A. 2C:15-1(a), a person is guilty of robbery if that person “inflict[ed]
bodily injury or use[d] 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) “inflict[ed] bodily
injury or use[d] force” on the victim; and (2) possessed, used, or threatened to use “what appeared to be . . . a knife”
during the commission of the robbery. By contrast, aggravated assault under
N.J.S.A. 2C:12-1(b)(1) requires proof of
an attempt “to cause serious bodily injury.” “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). Under the
circumstances of this case, aggravated assault is, at most, a related offense of the State’s robbery charge. The trial court
had no duty to instruct the jury sua sponte on “serious bodily injury” aggravated assault. (pp. 17-19)

4. Defense counsel did not argue that other forms of aggravated assault—beyond N.J.S.A. 2C:12-1(b)(1)—may
constitute lesser-included offenses of robbery before the trial court or Appellate Division. Those arguments are
therefore not properly before the Court, and the Court declines to address them. (pp. 19-20)

5. The Court notes and rejects the State’s argument that the opinion in State v. Sewell,
127 N.J. 133 (1992),
affirmatively held that assault is never 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. Here, 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. (pp. 20-21)

The judgment of the Appellate Division is REVERSED and defendant’s convictions are REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.

2
SUPREME COURT OF NEW JERSEY
A-
49 September Term 2016
078515

STATE OF NEW JERSEY,

Plaintiff-Appellant,

ALLEN ALEXANDER, a/k/a KARON
KEENAN,

Defendant-Respondent.

Argued January 3, 2018 – Decided April 30, 2018

On certification to the Superior Court,
Appellate Division.

Barbara A. Rosenkrans, Special Deputy
Attorney General/Acting Assistant
Prosecutor, argued the cause for appellant
(Robert D. Laurino, Essex County Prosecutor,
attorney; Barbara A. Rosenkrans, of counsel
and on the briefs).

Michael Confusione argued the cause for
respondent (Hegge & Confusione, attorneys;
Michael Confusione, on the brief).

Sarah C. Hunt, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Christopher S.
Porrino, Attorney General, attorney; Sarah
C. Hunt, of counsel and on the brief).

Jaime B. Herrera, Assistant Deputy Public
Defender, argued the cause for amicus curiae
Office of the Public Defender (Joseph E.
Krakora, Public Defender, attorney; Jaime B.
Herrera, of counsel and on the brief).

1
JUSTICE TIMPONE delivered the opinion of the Court.

In this appeal, we address whether the trial court erred

when it failed to instruct a jury sua sponte on aggravated

assault as a lesser-included offense of robbery.

The State alleged that defendant Allen Alexander conspired

with another to rob Ernesto Espinal at Gateway Center in Newark.

According to the State, defendant held the victim around his

neck while another man cut the victim’s forehead. Defendant and

his co-conspirator left without taking any items from the

victim.

Newark Police eventually arrested defendant in connection

with the incident. A grand jury indictment charged defendant

with second-degree conspiracy to commit robbery, first-degree

robbery, fourth-degree unlawful possession of a weapon, and

third-degree possession of a weapon for an unlawful purpose. A

jury ultimately convicted defendant of all charges.

On appeal, the Appellate Division reversed, finding that

the trial court erred in failing to charge the jury sua sponte

on “serious bodily injury” aggravated assault,
N.J.S.A. 2C:12-

1(b)(1). We find that the trial court had no obligation to

issue a sua sponte jury instruction. We therefore reverse the

Appellate Division’s decision and reinstate defendant’s

convictions.

2
I.

We derive the following facts from testimony presented

during defendant’s trial. The victim, Ernesto Espinal, and

defendant provided differing accounts of the incident that

occurred on July 4, 2012.

According to Espinal, he was walking alone through Gateway

Center to catch a train in Newark Penn Station when defendant

and three other individuals confronted him. Defendant ordered

that Espinal give him twenty dollars. Espinal ignored the

demand and continued walking toward the train station.

Suddenly, defendant grabbed Espinal around his neck and

commanded another individual to “cut” Espinal. Defendant’s

associate cut Espinal across his forehead with a knife while

defendant continued to hold Espinal’s neck. Defendant and the

others then left the area without taking any money from Espinal.

Espinal further stated that after the incident, he had “a

lot of blood” on his face. He eventually received aid from a

Dunkin’ Donuts employee and a security person. Police escorted

him in an ambulance to University Hospital for treatment. At

the hospital, he received stitches, which were removed seven

days later. His facial injury left a permanent scar.

Defendant gave the jury a different account. According to

defendant, he and three of his friends were walking together

3
through Gateway Center when he bumped into Espinal. Espinal

made a facial expression and said “something in Spanish.”

Believing Espinal had said “nothing nice,” defendant confronted

Espinal. Espinal and defendant exchanged profanities.

Defendant testified that one of his friends “tried to jump

in it,” but defendant grabbed his friend and told him to “leave

it alone.” His friend pushed defendant away and punched

Espinal. Defendant and his friends walked away. According to

defendant, he never asked Espinal for money and he did not see

anyone go through Espinal’s pockets or take Espinal’s wallet.

He further testified that he did not see a weapon in his

friend’s hand when his friend punched Espinal.

Espinal gave a statement to the Newark Police Department

after he left the hospital. The Newark Police Department, in

turn, opened an investigation into the incident. As part of the

investigation, law enforcement created a flyer using still

images from the surveillance video captured at Gateway Center.

Investigators circulated the flyer within the police department

via email. A sergeant, who had past interactions with

defendant, identified one of the photos as defendant.

Detective Filberto Padilla later conducted a six-photo

array at Espinal’s home. Espinal selected defendant’s picture

4
as depicting his assailant. Newark Police arrested defendant

the following day on July 20, 2012.

On October 17, 2012, an Essex County Grand Jury returned an

indictment against defendant charging him with second-degree

conspiracy to commit robbery,
N.J.S.A. 2C:5-2 and
N.J.S.A.

2C:15-1(b); first-degree robbery,
N.J.S.A. 2C:15-1; fourth-

degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d); and

third-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(d). The indictment did not charge defendant

with aggravated assault.

The State’s case against defendant went to trial before a

jury on January 23, 2014 under a theory of accomplice liability.

At the close of the evidence, the court conducted a charge

conference. At no point did either party request an aggravated

assault charge. During its closing argument, the State asserted

that robbery means “in the course of committing a theft, a

person causes bodily injury or uses force,” and that using a

deadly weapon “makes it a first degree robbery.” Defense

counsel did not object to the State’s explanation.

After summations, the trial court instructed the jury to

disregard statements by the attorneys that conflict with the

court’s charges. The trial court proceeded to instruct the jury

5
on the charges in the indictment. The court read the State’s

robbery-indictment charge verbatim:

[Defendant] . . . did knowingly commit an act
of robbery upon Ernesto Espinal, and in the
course of committing said robbery was armed
with, did use, or threaten the immediate use
of what appeared to be a deadly weapon, a knife
contrary to the provisions of
N.J.S.A. 2C:15-
1, a crime of the first degree and against the
peace of this State, the Government and
dignity of same.

The trial court instructed the jury that “[a] person is guilty

of robbery if in the course of committing a theft he knowingly

inflicts bodily injury or uses force upon another.” It then

explained each element the State had to prove beyond a

reasonable doubt to sustain a robbery conviction. Later, the

court instructed:

Robbery is a crime of the second degree except
that it is a crime of the first degree if the
actor is armed with or uses or threatens the
immediate use of a deadly weapon. In this
case the State must prove beyond a reasonable
doubt that the defendant was armed with a
deadly weapon while in the course of
committing the robbery.

Defense counsel neither requested an aggravated assault

charge nor objected to its omission from the trial judge’s jury

instructions. The jury convicted defendant of all charges. At

sentencing, the trial court merged the conspiracy conviction

into the robbery conviction and sentenced defendant to an

aggregate fifteen-year term of imprisonment, with an eighty-five

6
percent period of parole ineligibility pursuant to the No Early

Release Act,
N.J.S.A. 2C:43-7.2(a).

Defendant appealed his convictions. In an unpublished

opinion, a two-member Appellate Division panel reversed and

remanded for a new trial. The panel observed that, even absent

requests for charges or objections to charges, trial judges have

“an independent obligation to instruct on lesser-included

charges when the facts adduced at trial clearly indicate that a

jury could convict on the lesser while acquitting on the greater

offense.” (quoting State v. Jenkins,
178 N.J. 347, 361 (2004)).

The panel then noted that “to justify a lesser[-]included

offense instruction, a rational basis must exist in the evidence

for a jury to acquit the defendant of the greater offense as

well as to convict the defendant of the lesser, unindicted

offense.” (alteration in original) (quoting State v.

Funderburg,
225 N.J. 66, 81 (2016)). Synthesizing the two

tests, the panel stated the relevant inquiry as follows: “the

evidence must clearly indicate that there is a rational basis to

acquit the defendant of the greater offense, and to convict the

defendant of the lesser offense.”

After reviewing the elements of aggravated assault under

N.J.S.A. 2C:12-1(b)(1), as well as defendant’s testimony and

defense counsel’s summation, the panel reasoned that “[t]he jury

7
could have found that defendant did not participate, either

directly or as an accomplice, in a theft or attempt to commit

theft.” The panel noted defendant’s concession that he and his

friend had an altercation with the victim, “and the friend

punched the victim hard enough for the victim to fall to the

ground.” It concluded that “there is a rational basis in the

evidence for the jury to acquit defendant of robbery and

conspiracy to commit robbery, as well as to convict defendant of

aggravated assault.”

We granted the State’s petition for certification.
229 N.J. 593 (2017). We also granted the motions of the Attorney

General and the Office of the Public Defender to participate as

amici curiae.

II.

The State urges us to reverse the Appellate Division

decision, arguing that the trial court properly instructed the

jury on robbery. The State relies on our decision in State v.

Sewell,
127 N.J. 133 (1992), to insist that “[a]ssault simply is

not an included crime of robbery.” Emphasizing that defendant

never requested an aggravated assault charge, the State asserts

that the trial court had no obligation “to dissect the evidence

with a fine-tooth comb in search of some improbable

agglomeration of facts to sustain an unrequested jury

8
instruction.” The State also submits that the appellate panel

failed to recognize the difference between lesser-included and

related offenses, underscoring that trial courts are not

permitted to instruct a jury on related offenses without

defendant’s consent.

Defendant counters that the trial court did not need to

“sift through the record for possible charges” because

defendant’s testimony “clearly indicated” that a charge on

aggravated assault was appropriate. Defendant asserts that

assault may be a lesser-included offense of robbery under

certain circumstances like those presented here. Defendant

argues that the trial court’s failure to instruct on aggravated

assault left the jury without an alternative in the event it

found that the State failed to meet its burden of proving a

theft had occurred. As a result, defendant maintains that the

jury never had the option to “adopt[] defendant’s testimony” and

find him “guilty of an assault but not guilty of robbery.”

The Attorney General echoes the State’s arguments that

aggravated assault is not a lesser-included offense of armed

robbery, and that the trial court had no obligation to instruct

the jury on the unrequested charge. The Attorney General argues

that the appellate panel “improperly sifted through the record”

9
to piece together “an unsupported combination of facts and

inferences it deemed adequate to support the charge.” The

Attorney General asserts that the record did not clearly

indicate that an aggravated assault charge was appropriate. The

Attorney General submits that a sua sponte instruction on

aggravated assault would have prejudiced defendant by depriving

him of adequate notice of the charge against him.

Like defendant, the Public Defender stresses that

aggravated assault may be a lesser-included offense of robbery

under particular circumstances. The Public Defender argues that

the trial court erred by failing to charge the jury sua sponte

on aggravated assault. The Public Defender asserts that

defendant had “fair notice” that aggravated assault may be

charged as a lesser-included offense because the trial evidence

“clearly indicated a rational basis upon which the jury could

have acquitted defendant of robbery and convicted him of

aggravated assault.”

III.

We review for plain error the trial court’s obligation to

sua sponte deliver a jury instruction when a defendant does not

request it and fails to object at trial to its omission. State

v. Cole,
229 N.J. 430, 455 (2017); Funderburg,
225 N.J. at 79.

10
To warrant reversal, the unchallenged error must have been

“clearly capable of producing an unjust result.” R. 2:10-2.

“The mere possibility of an unjust result is not enough.”

Funderburg,
225 N.J. at 79. Rather, “[t]he possibility must be

real, one sufficient to raise a reasonable doubt as to whether

the error led the jury to a result it otherwise might not have

reached.” State v. Macon,
57 N.J. 325, 336 (1971).

A trial court’s decision to charge on a lesser-included

offense is governed by
N.J.S.A. 2C:1-8(e). Under that statute,

the trial court cannot charge a jury on “an included offense

unless there is a rational basis for a verdict convicting the

defendant of the included offense.”
N.J.S.A. 2C:1-8(e). We

have explained that “whether the lesser offense is strictly

'included’ in the greater offense . . . is less important . . .

than whether the evidence presents a rational basis on which the

jury could acquit the defendant of the greater charge and

convict the defendant of the lesser.” State v. Cassady,
198 N.J. 165, 178 (2009) (ellipses in original) (quoting State v.

Brent,
137 N.J. 107, 117 (1994)).

A party must request a charge or object to an omitted

charge at trial for the rational basis test to apply. “The

appropriate time to object to a jury charge is 'before the jury

retires to consider its verdict.’” Funderburg,
225 N.J. at 79

11
(quoting R. 1:7-2). When a defendant requests a lesser-

included-offense charge, “the trial court is obligated, in view

of defendant’s interest, to examine the record thoroughly to

determine if the rational-basis standard has been satisfied.”

State v. Crisantos,
102 N.J. 265, 278 (1986). “The rational-

basis test sets a low threshold” for a lesser-included-offense

instruction. State v. Carrero,
229 N.J. 118, 128 (2017) (citing

Crisantos,
102 N.J. at 278).

In the absence of a request or an objection, we apply a

higher standard, requiring the unrequested charge to be “clearly

indicated” from the record. In State v. Garron, we explained

that the “primary obligation” of trial courts is to “see that

justice is done.”
177 N.J. 147, 180 (2003). That obligation

includes ensuring “that a jury is instructed properly on the law

and on all clearly indicated lesser-included offenses, even if

at odds with the strategic decision of counsel.” Ibid. Our

Court has long held that trial courts have an independent duty

to sua sponte charge on a lesser-included offense “only where

the facts in evidence 'clearly indicate’ the appropriateness of

that charge.” State v. Savage,
172 N.J. 374, 397 (2002)

(quoting State v. Choice,
98 N.J. 295, 298 (1985)); accord

Funderburg,
225 N.J. at 81; State v. Thomas,
187 N.J. 119, 132

(2006) (quoting Jenkins,
178 N.J. at 361).

12
The “clearly indicated” standard does not require trial

courts either to “scour the statutes to determine if there are

some uncharged offenses of which the defendant may be guilty,”

Brent,
137 N.J. at 118 (quoting State v. Sloane,
111 N.J. 293,

302 (1988)), or “'to meticulously sift through the entire record

. . . to see if some combination of facts and inferences might

rationally sustain’ a lesser charge,” Funderburg,
225 N.J. at 81

(quoting Choice,
98 N.J. at 299). Instead, the evidence

supporting a lesser-included charge must “jump[] off the page”

to trigger a trial court’s duty to sua sponte instruct a jury on

that charge. State v. Denofa,
187 N.J. 24, 42 (2006).

We recently addressed the parameters of our trial courts’

duty to charge a jury sua sponte on a lesser-included offense in

the absence of a request or an objection by the defendant. In

Funderburg, the defendant was charged with attempted murder

after stabbing his ex-girlfriend’s new boyfriend during an

altercation.
225 N.J. at 72-74. The defendant did not request

a jury charge on attempted passion/provocation manslaughter as a

lesser-included offense of attempted murder at trial. Id. at

75. On appeal, the Appellate Division reversed and remanded for

a new trial, finding that the trial court erred in failing to

deliver that instruction. Ibid.

We reversed the Appellate Division’s judgment, concluding

that the trial court was not required to charge the lesser-

13
included offense sua sponte because “the facts before [it] did

not clearly indicate that the objective elements of attempted

passion/provocation manslaughter were present.” Id. at 82. In

reaching that conclusion, we “decline[d] to impose” a

“burdensome requirement on trial courts” to carefully examine

every piece of the record “to see if some combination of facts

and inferences might rationally sustain a [lesser-included]

charge.” See id. at 83 (quoting Choice,
98 N.J. at 299). We

also noted that not “every potential lesser-included offense

must be charged to the jury.” Ibid. We therefore found that

the trial court’s failure to deliver an unrequested

passion/provocation manslaughter charge to the jury was not in

error. Id. at 83-84.

In contrast to lesser-included offenses, trial courts are

never required to charge a jury sua sponte on related offenses.

State v. Maloney,
216 N.J. 91, 107-08 (2013) (discussing Thomas,

187 N.J. at 129-33). Related offenses are those that “share a

common factual ground, but not a commonality in statutory

elements, with the crimes charged in the indictment.” Thomas,

187 N.J. at 132. Jury instructions on related offenses raise

constitutional concerns because criminal defendants have rights

to a grand jury presentment and fair notice of criminal charges

against them. Id. at 130, 132-33. To prevent infringement of

14
those rights, a trial court may instruct the jury on a related

offense only when “the defendant requests or consents to the

related offense charge, and there is a rational basis in the

evidence to sustain the related offense.” Id. at 133.

IV.

We now apply those legal principles to the relevant facts

to determine whether the trial court erred in not charging the

jury sua sponte on aggravated assault,
N.J.S.A. 2C:12-1(b)(1),

as a lesser-included offense of robbery,
N.J.S.A. 2C:15-1.

As a preliminary matter, we review the appropriate standard

for assessing a trial court’s obligation to give unrequested

instructions on lesser-included offenses. The appellate panel

noted the clearly indicated standard applies to cases of

unrequested jury instructions but improperly applied the

rational basis test in its analysis. The panel ultimately

concluded, after reviewing the trial evidence, that “there is a

rational basis in the evidence for the jury to acquit defendant

of robbery and conspiracy to commit robbery, as well as to

convict defendant of aggravated assault.”

Yet, just because a charge meets the rational basis test

does not mean it meets the clearly indicated standard. As we

explained earlier, when a defendant fails to request a lesser-

included charge or object to its omission at trial, the need for

15
that charge is subject to a higher threshold. In that scenario,

unless that need is clearly indicated from the evidence, we will

not find plain error. See Denofa,
187 N.J. at 42.

The facts of this case call for review under the higher,

clearly indicated standard. Defendant had several opportunities

to request an aggravated assault charge before the trial court

but failed to do so. At a pretrial conference, the parties and

the trial court discussed the jury instructions to be charged,

which did not include aggravated assault. Defense counsel noted

his objection only to the court’s accomplice liability charge.

Similarly, at a conference before closing arguments, the trial

court specifically asked counsel if they had any additional

requests after it read the charges to counsel on the record.

Defense counsel again failed to request an aggravated assault

charge or to object to its omission at a charge conference

before closing arguments. Defense counsel likewise did not

submit a proposed aggravated assault instruction after closing

arguments and before the court charged the jury.

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 page[s]” of the record. Denofa,
187 N.J. at 42.

16
B.

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.” State v. Muniz,
118 N.J. 319, 324 (1990).

17
Under
N.J.S.A. 2C:15-1(a), a person is guilty of robbery if

that person “inflict[ed] bodily injury or use[d] 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)

“inflict[ed] bodily injury or use[d] force” on the victim; and

(2) possessed, used, or threatened to use “what appeared to be

. . . a knife” during the commission of the robbery.

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

18
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. Thomas,
186 N.J. at 133. So, a sua sponte charge would have violated

defendant’s constitutional grand jury presentment and notice

rights. See id. at 130.

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:12-2(b)(3) (requiring the accused to

recklessly cause “serious bodily injury to another with a deadly

19
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. See

DYFS v. M.C. III,
201 N.J. 328, 339 (2010) (noting that “issues

not raised below will ordinarily not be considered on appeal”).

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 “determine[d] the level of culpability

necessary to convert theft into robbery.”
127 N.J. at 134. 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. Id. at 142-48. 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.” Id. at 146.

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

20
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.

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