262 N.J. Super. 487 (1993) 621 A.2d 493

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GREGORY DEAN SMITH, DEFENDANT-APPELLANT.

Superior Court of New Jersey, Appellate Division.

Argued November 18, 1992. Decided February 17, 1993.

*491 Before Judges KING, LANDAU and THOMAS.

Ronald L. Kuby argued the cause for appellant (William M. Kunstler, Center for Constitutional Rights, and Justin Loughry of the firm Tomar, Simonoff, Adourian & O'Brien, on the brief).

Roseann A. Finn, Assistant Prosecutor, argued the cause for respondent (Edward F. Borden, Jr., Camden County Prosecutor, attorney; Ms. Finn, on the brief).

Robert J. Del Tufo, Attorney General of New Jersey, filed a brief amicus curiae (Jeffrey L. Weinstein, Deputy Attorney General, of counsel and on the brief).

American Civil Liberties Union of New Jersey and American Civil Liberties Union Foundation filed a brief amicus curiae (Debora A. Ellis and Ruth E. Harlow, on the brief; William B. Rubenstein, American Civil Liberties Union Foundation, of counsel; Evan Wolfson, Lambda Legal Defense & Education Fund, of counsel).

Zulima V. Farber, Public Defender of New Jersey, filed a brief amicus curiae (Audrey Bomse, Assistant Deputy Public Defender, of counsel; Alice K. Dueker, on the brief).

The opinion of the court was delivered by KING, P.J.A.D.

*492 Defendant was a county jail inmate at the time of this criminal episode on June 11, 1989. He had, and knew he had, the human immunodeficiency virus (HIV). On several occasions before June 11 he had threatened to kill corrections officers by biting or spitting at them. On that day he bit an officer's hand causing puncture wounds of the skin during a struggle which he had precipitated. The jury found him guilty of attempted murder, aggravated assault and terroristic threats. The judge imposed an aggregate 25-year term with a 12 1/2-year period of parole ineligibility.

On this appeal each of defendant's claims of error arises from his premises that (1) without dispute a bite cannot transmit HIV, and (2) defendant knew this when he bit the officers. From these premises defendant urges that he was wrongfully convicted of attempted murder because he knew that his bite could not kill the officer. He insists that he was convicted of such a serious charge because of society's discrimination against persons infected with this deadly virus. He claims that at worst he was guilty only of assaultive conduct and should have been sentenced, as a third-degree offender, to a relatively short custodial term.

From our review of this record, we conclude that neither of defendant's two premises has been established. First, if HIV cannot possibly be spread by a bite, the evidence at trial did not establish that proposition. Indeed, we doubt that the proposition is presently provable scientifically, given the current state of medical knowledge. The apparent medical consensus is that there has never been a controlled study of a sufficiently large number of cases to establish to any scientific certainty if transmission of HIV is possible by a bite, and if so, the percentage of likely infection. The proposition was surely disputed at this trial. Second, whether defendant actually believed that his bite could result in death was a question of his credibility, a question the jury obviously resolved against him.

*493 We cannot and need not decide if a bite can transmit HIV. We have applied the elements of the attempted murder statute as we would in a case involving a more traditional criminal methodology. We conclude that the attempted murder verdict was supported by proof, which the jury reasonably could accept, that the defendant subjectively believed that his conduct could succeed in causing the officer's death, regardless of whether his belief was objectively valid. For this reason, we affirm the conviction.

I

On April 14, 1989 defendant was committed to the Camden County jail for trial on robbery charges. In September 1988 defendant had been tested and found positive for HIV. His jailers incarcerated defendant in a special section at the Camden County jail known as the "blood alert" area. This meant the guards would take extra care if blood was spilled during an altercation. Defendant would often talk to the guards about his HIV infection, telling them that he would do anything to get out of the county jail and go to a State prison, where he felt he would receive better medical treatment. He contacted a reporter from a local newspaper, which had printed an article regarding the treatment of HIV and AIDS prisoners in the Camden County jail.

On May 5 defendant began kicking his cell door and yelling to get out. When he refused to stop, corrections officers entered his cell, handcuffed him, and shackled him to his bed. While the officers were subduing him, he threatened to bite and spit on them if they came any closer. During the struggle defendant "started showing his teeth" at the officers.

On May 17 defendant put his foot in the door of his cell as an officer was trying to close it. This required other officers to come and force defendant back into the cell where they restrained him. During that struggle defendant jumped up on his bed and told the officers that "he was going to take one of *494 us the fuck out." He told one officer "that he would have me taken care of by getting his brothers to blow up my car, he was going to have me killed." He also threatened to bite one of the officers.

Later in the evening of May 17 another officer was putting defendant back into restraints after a trip to the bathroom when defendant "spit at me several times telling me that he'd take me out." As the officer tried to subdue him, defendant was "trying to get out of the restraints, very aggressive, thrashing around, spitting constantly," and threatening to spit in the officer's mouth, which he tried to do.

The incident giving rise to this prosecution occurred on June 11, 1989. Correction Officers Snow and Waddington were ordered to escort defendant to the nearby Cooper Hospital Emergency Room. Defendant claimed that he had fallen in his cell and injured his head and back. As a precaution against further injury, the ambulance squad placed defendant on a backboard with a neck brace, and, according to standard procedure, the corrections officers handcuffed and shackled him.

Before the five-minute trip to the hospital, Snow and Waddington's supervisor told them that defendant had HIV. The officers put on rubber gloves as a precaution. Officer Waddington was armed with a .38 revolver. At the Cooper Hospital emergency room, defendant told the nurse that "he felt woozy and fell down and hit his back and his head in the jail." Dr. Nathan then examined him and decided that no X-rays were necessary and that "there was nothing essentially wrong with Mr. Smith." According to the nurse, defendant's reaction was to demand to see another doctor and to call Dr. Nathan a "white bitch." When another physician, Dr. Weems, came and confirmed Dr. Nathan's opinion, defendant, according to the nurse, "yelled out to Dr. Weems to go fuck himself and he was screaming out all these things that because he was black we were — we weren't taking care of him, we were all white staff *495 and because he had AIDS we weren't giving him proper care and he was very disruptive to the emergency room."

Defendant then demanded his medical records but Officers Waddington and Snow were unable to get them. The hospital's policy was not to release records to patients. At that point defendant "was out of control," screaming, grabbing a monitor and threatening to break it. Waddington and Snow attempted to subdue defendant. As they approached him, he grabbed a "metal cylinder" and tried to throw it at Snow. The officers rushed defendant and grabbed him. Defendant "went limp" and began screaming "they're beating me, they're beating me." Because he refused to leave on his own power, Snow and Waddington grabbed him under the shoulders and dragged him out of the emergency room into a nearby waiting room until a patrol car came to take them back to the county jail. Throughout this period, defendant had leg irons and handcuffs on; departing from normal procedure, he was handcuffed in the front, a concession to his claimed back injury.

As the officers dragged defendant from the emergency room, he began "snapping his teeth" at Snow and threatening him:

Yes, he threatened me personally, he said that he was going to bite me, he was going to give me AIDS, I know what he has, I'm going — you're going to give me — I'm going to give you AIDS, I'm going to bite you, I'm threatening you, he started threatening my family, I'm going to find you, I'm going to get your family, you know I'm out of here in April and he's going on and on....

Through this tirade, Snow was holding defendant down in order to avoid his mouth. Snow described his own reaction as follows:

All I was thinking of, and I was really scared at this point, I mean I was — I just kept his face as far away from me as I could because he had been snapping at me and he had said like, you know, he was going to try to kill me by biting me and I was really scared. I just wanted to keep his mouth away from me and I just felt like I just want to get out of there. I don't want to be here, but this is my job and I'm doing it the best I can. And all this was going on about the, you know, while we're waiting for the squad car to come over. I guess it was 15 or 20 minutes we had to wait and put up with this verbal abuse. And he's trying to bite me and I was just holding on for basically dear life.

Officer Waddington described the scene this way:

From the time we started escorting him down the hall when he was in the fetal position he was threatening that he was going to bite us, that he had *496 AIDS and we're going to get AIDS and we're going to die too. The first chance he gets he said I'm going to kill you mother fuckers. We just kind of put it out of our way and just kept on doing what we had to do.

Q. As you were walking down the hall and he was making those threats did he make any movements or any gestures towards either one of you?

A. He was thrashing his head back and forth towards Officer Snow and myself and we kept him away from us and tried dragging him out. That's what made it difficult.

Waddington also testified that:

Gregory just kept on saying if I get my — if I get my mouth on you I'm going to bite you, I'm going to give you AIDS, Waddington, he says if I see you out on the street I'm going to come get you, I'm going to kill you, I'm going to go after your family, just basically threatening us that he's going to give us this virus or HIV positive blood that he has he's going to transfer to us.

After Officer Polk arrived with a patrol car, Waddington and Snow dragged defendant out of the hospital. He tried to break loose and hit Snow with the handcuffs. In the ensuing tussle, all three fell into the street. By that point in the struggle, the officers' rubber gloves had come off. Snow said that he "saw as Gregory pulled his teeth off Al's hands, Officer Waddington, there were several puncture wounds and I was very scared at that point because he had already threatened me." Snow saw "noticeable blood and puncture wounds right as he [defendant] came off" Waddington's hand.

The officer finally got defendant into the backseat of the cruiser. Snow sat next to defendant. Waddington rode in the front passenger seat, and Polk drove. When Snow got in the backseat, defendant began kicking him and attacking him with the handcuffs. At that point, the officers put the handcuffs behind defendant's back.

During the ride back to the jail, defendant continued his harangue; he spit in Waddington's face saying, "I hope you die, you pig, Waddington." According to Waddington, defendant "said something to Snow about if he gets a chance he's going to bite him, give him AIDS and he says you, Waddington, he goes and he spit on the back of my neck, he said now die, you pig, die from what I have." Defendant then leaned over and "tried to bite Snow on the side of the face."

*497 Back at the jail, Waddington noticed blood coming from the bite wounds on his hand. He immediately went to the nurse on duty who cleaned the wounds and gave him a tetanus shot. The nurse advised Waddington "to go to the hospital." The State introduced two photographs, taken two or three days after the incident, showing the bite wounds.

On June 14, 1989 Waddington was treated by Dr. Zimmerman, whose practice included treating job-related injuries of Camden County personnel. Waddington told the doctor that he had been bitten by a prisoner who was HIV positive. Dr. Zimmerman prescribed an oral antibiotic as a preventative measure against infection, and "administered hepatitis B immunoglobulin" as a precaution against hepatitis. In explaining his treatment, Dr. Zimmerman testified that human bites, even without involvement of HIV, can cause "very nasty;" and even fatal, infections. Since the incident, Waddington has undergone continued testing for HIV. As of the time of trial in April 1990, the tests had been negative.

The State presented testimony about two later incidents tending to demonstrate defendant's motives. On June 12, 1989 defendant refused to take a shower when told by Corrections Officer Cowgill. Defendant responded that he would bang on the door of his cell all day unless he were allowed to shower at a later time. To make him stop banging, Cowgill and other officers cuffed and shackled defendant. While the officers were restraining defendant, defendant said, according to Cowgill, "You know what I have and I'll give it to you if you ... attempt to come in here and cuff and shackle me." Cowgill thought that defendant was referring to AIDS.

The other incident occurred on October 17, 1989 as defendant was being processed for transfer to Trenton State Prison. McIntyre was the corrections officer on duty. Defendant began verbally abusing and threatening him. He told him "that he had AIDS, that he would bite me, that I will die with him." As McIntyre let defendant out of his cell, he swung at McIntyre *498 and "made multiple attempts at biting" him as he tried to subdue defendant.

On the point of HIV transmission by a human bite, the State offered Dr. Porwancher, as an expert in infectious disease. He was Board-certified in internal medicine and infectious diseases and the Chief of Infectious Diseases at St. Francis Hospital, Trenton and had treated at least 1,000 AIDS patients. He testified that AIDS is usually fatal within two years and is caused by HIV. Upon acquiring HIV, a person develops AIDS within a period of years, the median period is about ten years. HIV can not be transmitted by casual contact, such as a sneeze, a handshake, a kiss, or food prepared by someone with AIDS. HIV is present in all body fluids such as blood, semen, saliva and tears.

Dr. Porwancher identified three sources of information concerning the role of saliva in spreading HIV. First, the doctor cited a case report to the editor of Lancet, a well-respected medical journal, describing an incident in which a nurse was bitten on the leg by an AIDS patient and later tested positive for HIV. Second, Dr. Porwancher cited a second case report to the editor of Lancet, reporting that a child had contracted HIV after he was bitten by his brother, who had contracted AIDS from a blood transfusion. The third source of Dr. Porwancher's information was a conversation he had with Dr. Osmenoff from the Soviet Union, who had published data in a prominent Soviet medical journal reporting an outbreak of AIDS in mothers from bites by year-old infants while breast feeding. The infants had been infected with HIV by dirty syringes.

Dr. Porwancher conceded that none of his sources of information qualified as a controlled study. They were "anecdotal." Nonetheless, the doctor said that these incidents indicated to him that "it is possible to transmit [HIV] through bite wounds." He said, "within a reasonable degree of medical probability," that "it is on rare occasion possible to transmit the virus via a bite injury." After reviewing the medical records indicating *499 that defendant was infected with HIV, the doctor said that defendant was capable of transmitting HIV through his saliva. After looking at the photographs of Waddington's bite wounds, the doctor reaffirmed that HIV transmission was "possible" to Waddington via the bites.

Defendant offered his own infectious disease specialist, Dr. Condoluci who criticized the Lancet reports relied on by Dr. Porwancher, explaining in detail how neither warranted an inference that HIV was transmitted by a bite. According to Dr. Condoluci, there had been "two very well documented studies that concern bite wounds and the potential for transmission [of HIV]." In the two studies reported in recent medical journals (Journal of Aids and the Journal of the American Medical Association), no bite victim tested positive for HIV.

Based on a reasonable degree of medical certainty, Dr. Condoluci thought that there was "a very low probability of being infected following a bite wound of an adult as an isolated incident." He characterized the chances of such transmission as "extremely remote" and "very slim." Nonetheless, Dr. Condoluci conceded that if he treated a patient who had been bitten by an HIV carrier, he would test the patient for HIV. The doctor also acknowledged that the United States Department of Health and Human Services, in its published guidelines concerning the transmission of HIV, had indicated "that the role of the transmission of saliva vis-a-vis a bite is still unclear."

Defendant testified. He said that he was discontented at the Camden County Jail because the jail could not afford to provide HIV inmates with AZT, which he had been taking before he was incarcerated. Without AZT, his weight decreased from 145 to 110 pounds between April and June 1989. Defendant and some other inmates called the local newspapers to complain of the lack of proper medical attention. In addition, he wrote to the jail warden saying that "if they didn't move me out of here I was going to start up my shit. And what I meant by starting *500 up my shit was calling reporters again because I wanted to be transferred. I was weighing 110 pounds."

Defendant's account of the June 11 incident differed from the State's witnesses. Defendant said that on June 10 he had blacked out, striking his back and head. He attributed this fall to his weakness from the lack of AZT. A nurse examined defendant and decided that he should be taken to the hospital emergency room. Waddington and Snow handcuffed defendant, shackled him to a board, and escorted him to the hospital. A doctor examined defendant and refused his request for an X-ray. When defendant refused to leave without an X-ray, he said that Waddington pulled him off the examining table, threw him on the floor, and handcuffed him. Waddington then dragged him into another room and began beating and punching him, telling him "how much he hated niggers," according to defendant.

The officers then dragged defendant outside and pushed him into a patrol car. He denied spitting or biting Waddington, attributing Waddington's wounds to cuts sustained from defendant's handcuffs. Defendant also denied threatening any of the officers with his HIV condition. According to defendant, each of the witnesses who testified to such a threat or attack lied. Defendant filed simple assault charges against Waddington as a result of the June 11 incident.

According to the information known to defendant, AIDS could be contracted in only three ways — "sexually, blood transfusion or using needles." He believed AIDS transmission by a bite "impossible." As sources of his knowledge, defendant cited his own readings, conversations with doctors, and a discussion with Eugene Niblack, a mental health worker who had counselled him in the jail. At trial, Niblack confirmed that he had told defendant the following:

I specifically indicated, as with all inmates whom I counseled in this area, that it was a very difficult virus to transmit. And I specifically discussed with him the fact that it could not be gotten from shaking hands, it could not be gotten *501 through spitting, it was extremely difficult, if not impossible, to get through biting.

Defendant's sister-in-law, Donna Smith, a corrections officer on duty during the June 11 incident, also testified on his behalf. Donna Smith saw Waddington drag defendant back into his cell. Waddington then told Donna Smith that defendant had bit him on the hand. She saw two scratches on his hand; she said that they were not punctures and there was no blood. Donna Smith was also present when defendant was being examined by the nurse on return from the hospital; she saw black and blue marks on defendant's back, which had not been there when he left the jail to go to the hospital.

In August 1989 defendant was indicted for:

Count One: attempted murder of Officer Waddington, contrary to N.J.S.A. 2C:5-1 and 2C:11-3(a);

Count Two: attempted murder of Officer Snow;

Count Three: third-degree aggravated assault on Officer Snow, who was acting in the performance of his official duties, contrary to N.J.S.A. 2C:12-1(b)(5);

Count Four: third-degree aggravated assault on Officer Waddington, who was in the performance of his official duties;

Count Five: third-degree terroristic threats against Officers Snow and Waddington, contrary to N.J.S.A. 2C:12-3(b);

Count Six: second-degree aggravated assault on Officer Waddington, contrary to N.J.S.A. 2C:12-1(b)(1).

Count Two was dismissed before trial. In November 1989 defendant again was indicted, in a single count indictment, charging terroristic threats against Officer McIntyre, contrary to N.J.S.A. 2C:12-3(a) & (b). The indictments were consolidated for trial.

On April 11, 1990 the jury returned a verdict of not guilty on the single count in the second indictment charging threats against McIntyre. The jury found defendant guilty on each of the five remaining counts in the first indictment.

Judge Mariano sentenced defendant as follows:

Count One: 20 years in prison with a ten-year period of parole ineligibility;

Count Three: five years in prison with a two and one-half-year period of parole ineligibility, consecutive to the term imposed on Count One;

*502 Count Four: merged with Count One;

Count Five: five years in prison, concurrent with Count One;

Count Six: merged with Count One.

These are the issues raised by defendant on this appeal, in the order he presents them:

1. DID THE SENTENCING JUDGE ERR IN REFUSING TO APPLY THE MITIGATION-OF-SENTENCE PROVISION OF N.J.S.A. 2C:5-4(b)(1).

2. WERE THE GUILTY VERDICTS ON ATTEMPTED MURDER AND AGGRAVATED ASSAULT AGAINST THE WEIGHT OF THE EVIDENCE.

3. DID THE TRIAL COURT COMMIT PLAIN ERROR BY CHARGING THE JURY THAT DEFENDANT COULD BE FOUND GUILTY OF ATTEMPTED MURDER UPON PROOF THAT DEFENDANT INTENDED TO KILL WADDINGTON BY BITING HIM, REGARDLESS OF WHETHER IT WAS MEDICALLY IMPOSSIBLE FOR THE BITE TO TRANSMIT HIV.

4. DID THE TRIAL COURT COMMIT PLAIN ERROR BY FAILING TO CHARGE THE JURY TO ASSESS DEFENDANT'S CRIMINAL PURPOSE BY CONSIDERING THE UNSUITABILITY OF A BITE AS A MEANS OF SPREADING HIV.

5. DID THE TRIAL COURT ERRONEOUSLY CHARGE THE JURY IN SUCH A WAY AS TO ALLOW IT TO APPLY A SUBJECTIVE TEST TO THE TERRORISTIC-THREATS OFFENSE.

6. WAS THE VERDICT AS TO TERRORISTIC THREATS AGAINST THE WEIGHT OF THE EVIDENCE.

7. DID THE TRIAL COURT ERR IN ADMITTING THE OPINION TESTIMONY OF THE STATE'S MEDICAL EXPERT REGARDING THE POSSIBILITY OF HIV TRANSMISSION VIA A BITE.

We address these issues in a somewhat different order than presented by defendant.

II

Defendant contends that Judge Mariano erroneously charged the jury that it could find him guilty of attempted murder upon proof that he intended to kill Waddington by biting him, regardless of whether it was medically possible that the bite could have transmitted HIV. Instead of focusing on his subjective belief about the effect of the bite, defendant contends the judge should have charged an objective test. Defendant claims that he can be guilty only if a "reasonable person" would have believed that the bite could be fatal.

*503 As defendant concedes, he neither requested such a charge nor objected to the charge as given. This point is not cognizable on appeal unless it qualifies as "plain error," R. 1:7-2, R. 2:10-2, a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538, 257 A.2d 699 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970). Defendant insists that this error so qualifies, because the mistaken charge made "it easier for the jury to convict" him. He reasons that the charge, as given, allowed the jury to convict upon a finding only that defendant subjectively intended to kill, and not, as it should have been required to find, that the attempt was objectively likely to succeed. We consider this claim under the "plain error" doctrine.

The statute governing criminal attempts is N.J.S.A. 2C:5-1. The pertinent part of that statute is the definitional subsection:

a. 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.

On its face this section creates three separate categories of attempt, two of which incorporate a reasonable-person standard — subsections (1) and (3) — and one of which looks only to defendant's own purpose — subsection (2). John M. Cannel, New Jersey Criminal Code Annotated, comments 4-6 on N.J.S.A. 2C:5-1, at 190-91 (1993). Judge Mariano charged on subsection (2) only, saying:

*504 Our law provides that a person is guilty of an attempt to commit a crime if the person, acting with the same culpability or state of mind required for the commission of the substantive offense, the crime of murder in this case, does anything with the purpose of causing death, without any further conduct on his part.

The judge then explained that defendant must have "done all that he believes necessary to cause the particular result," here, the death of Waddington. Our Criminal Code "requires that to be guilty of attempted murder, a defendant must have purposely intended to cause the particular result that is the necessary element of the underlying offense — death." State v. Rhett, 127 N.J. 3, 7, 601 A.2d 689 (1992).

The judge then charged that it was irrelevant whether the jury found that a bite could succeed in transmitting HIV:

I must instruct you that impossibility is not a defense to the charge of attempted murder. That is because our law, our criminal statutes punish conduct based on state of mind. It punishes purposeful actions regardless of whether the result can be accomplished. And even if the result, which would be death in this case, was a scientific or factual impossibility. In this case if you should be convinced beyond a reasonable doubt by the State's evidence that Mr. Smith's purpose was to kill Sheriff's Officer Waddington by biting him it does not matter that the chances of spreading the virus were either remote or impossible. If the State has proven purposeful conduct beyond a reasonable doubt then the State has proven the essential elements of the crime attempted murder.

Defendant contends that the judge deprived him of the impossibility defense created by the "reasonable person" language of subsection (1). Defendant overlooks the separate and different standard announced in subsection (2), which was intended to eliminate an impossibility defense. "Under this Section [subsection (2)], where the actor has done all that he believes necessary to cause the particular result which is an element of the crime, he has committed an attempt." The New Jersey Penal Code, Vol. II: Commentary, Final Report of the New Jersey Criminal Law Revision Commission 148-49 (1971) (hereinafter New Jersey Penal Code). This subsection was taken verbatim from the Model Penal Code, section 5.01(1)(b). See Cannel, supra, Criminal Code Annotated, comment 1 on N.J.S.A. 2C:5-1, at 187. The drafters of the Model Penal Code *505 explained that Section 5.01(1)(b) rejected the defense of impossibility, "liability being focused upon the circumstances as the actor believes them to be rather than as they actually exist." Model Penal Code § 5.05, commentary at 490-91 (1985). See Paul H. Robinson, Fundamentals of Criminal Law 491 (1988); 1 Paul H. Robinson, Criminal Law Defenses § 85, at 427 (1984).

New Jersey's Legislature departed from the Model Penal Code as to the first and third categories, imposing the reasonable-person standard in place of the Model Penal Code's subjective standard, i.e., circumstances were "as he believes them to be." Cannel, supra, Criminal Code Annotated, comment 4 on N.J.S.A. 2C:4-5, at 190. In adopting verbatim the second category, the Legislature demonstrated its intent to embrace a subjective standard as to that category. The omission of the "reasonable person" language in subsection (a)(2) shows a strong legislative purpose to reject the impossibility defense in "result"-type offenses where the defendant has committed what he believes to be the "last proximate act" necessary to complete the offense.

Under N.J.S.A. 2C:5-1(a)(2), defendant may properly be found guilty without a concomitant finding that the bite would more probably or likely than not spread HIV. We think it sufficient that defendant himself believed he could cause death by biting his victim and intended to do so. As we conclude in III, there was ample evidence to support the jury's finding of defendant's criminal purpose to kill the correction officer.

Defendant disagrees with the State's insistence that N.J.S.A. 2C:5-1(a) sets forth three independent or separate bases for criminal responsibility. Instead, claims defendant, subsections (1) and (2), "far from creating two different kinds of liability, create one type of attempt liability with two different aspects, both of which must be satisfied. This is why the two subsections are written in the conjunctive, separated by a semicolon, rather than the disjunctive, [separated by "or"] as are subsections *506 (2) and (3)." Defendant also suggests how a "better drafter" could have more clearly expressed the meaning he infers.

As much as defendant would have preferred a statute joining both subsections (1) and (2) as correlative and requisite elements of criminal attempt, the Legislature enacted a different version, one which we cannot reasonably read as defendant wants. Purely as a matter of grammar, the three subsections are disjunctive. When items in a list are joined by a comma or semicolon, with an "or" preceding the last item, the items are disjunctive. See State v. Andrews, 707 P.2d 900, 905-06, 908 (Alaska Ct. App. 1985), aff'd o.b., 723 P.2d 85 (Alaska 1986); 1A Norman J. Singer, Sutherland Statutory Construction § 21.14, at 127-28 (4th ed. 1985). As a principle of statutory construction, this rule is subject to exception if its application would subvert the clear legislative intent. State v. Andrews, supra, 707 P.2d at 908. But here there would be no such violation of legislative intent. The legislative history of this section compels our conclusion that the drafters intended three separate kinds of attempt, any one of which triggers criminal liability. The Final Report of the Criminal Law Revision Commission analyzes each subsection of N.J.S.A. 2C:5-1(a) as a separate basis for criminal liability. New Jersey Penal Code, supra, at 114-16. The leading commentator has so recognized: "Subsection (a) recognizes three categories of attempt." Cannel, supra, Criminal Code Annotated, comment 2 on N.J.S.A. 2C:5-1, at 188. We reject defendant's invitation to "improve" on the Legislature's drafting.

Our research and counsels' diligence disclose several similar cases from other states. In Scroggins v. State, 198 Ga. App. 29, 401 S.E.2d 13 (1990) (cert. denied January 7, 1991), defendant, who had HIV, bit a policeman trying to subdue him during a domestic disturbance. The jury found defendant guilty of aggravated assault with intent to murder. Defendant contended that the verdict was not supported by the evidence, *507 absent proof that "the HIV virus can be transmitted by human saliva." Id. at 16. The Georgia statute, Ga. Code Ann. § 16-4-4, provides that factual or legal impossibility is not a defense to attempted murder, "if such crime could have been committed had the attendant circumstances been as the accused believed them to be." Id. at 18. The Georgia Court of Appeals found there was ample evidence supporting a finding that defendant "believed he could transmit the virus in the method used," making it immaterial "that it might have been impossible to do so." Ibid. As evidence of his state of mind, the court cited defendant's laughter when his victim asked him after the attack if he "had AIDS," together with "the unsettled state of the body of knowledge as to the transmission of the AIDS virus" in 1989. Id. at 18-19. That the possibility of transmission might have been slight did not preclude defendant's conviction:

Appellant makes much of the expert's testimony that there is only a "theoretical possibility" of transmittal of the virus through saliva, but a "theoretical possibility" is clearly a "possibility," or else the phrase has no meaning. So long as medical science concedes this "theoretical possibility," the jury was well within the evidence to consider the human bite of a person infected with the AIDS virus to be "deadly." Where a medical expert under thorough examination, testifies to his knowledge of the subject and still cannot state one way or the other whether a particular instrumentality is "deadly," the jury in considering all the circumstances, including the risk to the victim and to society, is at least as competent as the witness to determine whether it was an instrument likely to produce death. See Moran v. State, 120 Ga. 846, 48 S.E. 324. [Id. at 20.^[1]]

*508 In State v. Haines, 545 N.E.2d 834, 835 (Ind. Ct. App. 1989), a jury convicted defendant on three counts of attempted murder, based on evidence that he bit and spread blood from his own wounds onto a police officer and paramedics, yelling that he had AIDS and would give it to them. The evidence established that (1) defendant was, and knew he was, infected with the AIDS virus; (2) he believed his condition to be fatal; and (3) he intended to infect others "by spitting, biting, scratching and throwing blood." Id. at 838. The trial judge vacated the conviction on the ground that the state had failed to prove that the AIDS virus could be spread by the means used by defendant.

The Indiana Court of Appeals reversed, citing that state's statute expressly rejecting impossibility as a defense to an attempted crime. Id. at 839. The court reasoned that "the State was not required to prove that Haines' conduct could *509 actually have killed. The State needed only to show that Haines did all that he believed necessary to bring about an intended result, regardless of what was actually possible." Ibid. The defendant had repeatedly announced that he had AIDS and desired to infect and kill others. At the hospital, he was told by doctors that biting and spitting, and throwing blood was endangering others. In any event, observed the Indiana court, the medical evidence showed that transmission by bites or contact with blood was at least possible, and to a degree that exceeded a merely theoretical or speculative chance. Id. at 841.

In Weeks v. State, 834 S.W.2d 559 (Tex. Ct. App. 1992) (review refused October 14, 1992), a jury convicted defendant of attempted murder, based on proof that defendant, who was HIV positive, had spit on a prison guard with the intent to infect him. Under Texas' attempted murder statute, the accused had to intend to kill his victim, and, in contrast to N.J.S.A. 2C:5-1(a)(2), he had to commit an act that "could have caused" that victim's death. Id. at 561. The intent element was undisputed; there was conflicting medical evidence as to whether HIV was transmittable by saliva. Id. at 562-64. Since the jury resolved the conflict against defendant, the Texas appellate court deferred to the jury's finding. Id. at 565. That court rejected the defendant's invitation to take judicial notice that it is impossible to spread HIV through spitting: "Many of the AIDS experts express the opinion that it is impossible to transmit HIV through saliva. However, this has not been conclusively established and is not free from reasonable dispute." Id. at 562 n. 2.

In the case before us, there was ample evidence from which the jury could have concluded that defendant did all that he believed was necessary to infect Waddington. We conclude that the judge properly submitted the case to the jury under N.J.S.A. 2C:5-1(a)(2). Under this subsection the objective probability or likelihood of infection was irrelevant. The Legislature's purpose under this subsection of the attempt statute was to criminalize the mental intent to commit a crime when defendant had engaged in conduct sufficient, as far as he knew, to *510 result in that crime. The circumstances of this case fall squarely within that prohibition. We find no error, "plain" or otherwise, in the judge's careful refusal to impose a "reasonable person" standard on N.J.S.A. 2C:5-1(a)(2) where the Legislature clearly retained the Model Penal Code's subjective approach for this type of offense.

In his Point Four, closely related to the preceding argument, defendant contends "plain error" in the charge in barring the jury from considering the unlikelihood that the AIDS virus could be spread by a bite. Defendant reasons: "The court below should have instructed the jury that it should consider the unsuitability of the means chosen in its determination of whether Smith acted with the requisite purpose."

Defendant invokes the following excerpt from the commentary to the Model Penal Code as authority for his theory: "if the means selected were absurd, there is good ground for doubting that the actor really planned to commit a crime." Model Penal Code, supra, § 5.01, commentary at 315. Defendant equates his biting Waddington with a "voodoo incantation" which is medically incapable of causing death, regardless of whether a person believed to the contrary.

Again, defendant's theory founders on its premise. There was no proof at trial that biting could not possibly transmit HIV. Rather, the evidence was equivocal, with even defendant's expert conceding that there was at least a "remote" possibility of transmission. In any event, the objective likelihood of transmission is irrelevant to liability under N.J.S.A. 2C:5-1(a)(2). It is sufficient that defendant believed his attack would infect Waddington. Such a belief would not necessarily be "absurd" in the same way that a belief in the efficacy of a voodoo curse is unfounded.

Moreover, even if the voodoo analogy is apt, defendant could still be found guilty if the circumstances showed that defendant was "dangerous":

*511 Cases can be imagined in which it might well be accurate to say that the nature of the means selected, say black magic, substantially negates dangerousness of character. On the other hand, there are many cases as well where one who tries to commit a crime by what he later learns to be inadequate methods will recognize the futility of his course of action and seek more efficacious means. There are, in other words, many instances of dangerous character revealed by "impossible" attempts, and to develop a theory around highly exceptional situations ignores the propriety of convictions in these. [Model Penal Code, supra, § 5.01, commentary at 316 n. 88.]

In the present case defendant's violent assaults and venomous harangues before, during and after biting Waddington, all justified an inference that he bore the requisite criminal state of mind under N.J.S.A. 2C:5-1(a)(2). The judge did not err in failing to charge that the jury should consider the probable efficacy of a bite in spreading HIV.

III

Defendant contends that the verdicts on Counts One and Six (attempted murder and aggravated assault of Waddington) were against the weight of the evidence, given the "wholly uncontroverted" evidence that defendant knew that AIDS could not be transmitted through biting or spitting. While he concedes the State's evidence shows that he repeatedly threatened to kill various officers by biting them or spitting at them, he contends that, in view of his certain knowledge that neither kind of attack could spread AIDS, his only true motive was to take "advantage of the ignorance and fear of his jailors." He pleads that he should not be punished for exploiting that fear and ignorance.

Defendant admits that he failed to move for a new trial on this ground. Thus, this point is not cognizable on appeal: "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1. Hence we may refuse to consider it. State v. Ross, 249 N.J. Super. 246, 253, 592 A.2d 291 (App.Div. 1991). But we can proceed to the merits, if we choose, in the interest of justice. *512 See, e.g., State v. Pickett, 241 N.J. Super. 259, 266, 574 A.2d 1014 (App.Div. 1990); R. 2:10-2.

In considering whether a jury verdict was against the weight of the evidence, our task is to decide whether "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We must sift through the evidence "to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91