concurring. Certain .comments made in the opinion dissenting from today’s • affirmance by an equally divided court of the Appellate Division’s judgment upholding defendant’s conviction on three charges of atrocious assault and- battery compel me to state the basis of my vote to affirm.
*321As is recounted in detail in Judge Larner’s opinion below, 144 N. J. Super. 25 (App. Div. 1976), each of defendant’s victims was “wounded” in the literal sense of that term since there was in each case “an injury to the body consisting of a . . . breaking of the skin ... by a hard or sharp instrument forcefully driven or applied.” Webster’s Third New International Dictionary (1971) at 2638. Once the “wounding” element of the offense proscribed by N. J. S. A. 2A:90-1 has been established, the totality of the circumstances surrounding the assault and battery may be examined in order to ascertain whether the particular conduct may properly be considered to be “atrocious.” In my view, to so qualify the viciousness of the act must be of a different order of magnitude than that ordinarily and necessarily involved in the “simple” assault and battery. The primary measure of viciousness is the character of the assault — ■i. e., the brutal quality or outrageously cruel nature of the defendant’s act. A related factor to be included in the evaluation of viciousness is the substantiality of the injuries inflicted. The factors stand in an inverse relationship — the more heinous the assaultive act, the less substantial must the injuries be to support a conclusion that the requisite element of viciousness exists. Similarly, less outrageous conduct may nevertheless constitute an “atrocious” assault and battery where the ensuing injuries are significant. I find this analysis to be implicit in State v. Edwards, 28 N. J. 292 (1958). There the victim of a beating which we found to be “savagely brutal” sustained only bruises and scratches which were “superficial” in the medical sense of that term. We held that when considered in conjunction with the nature of the assault, the injuries were sufficiently serious to constitute, in the eyes -of the law, the “substantial injuries” necessary to warrant a conviction for atrocious assault and battery.1 See 28 N. J. at 299.
*322In light of the vile and contemptible nature of defendant’s conduct, the injuries sustained by the victims in the instant case, although not serious, are nevertheless "sufficiently substantial” to warrant a conviction under N. J. S. A. 2A :90-l. These victims had their skin punctured, bled and ran the risk of infection. As amply demonstrated in the opinion below, defendant’s assaults were part of a sinister and diabolical scheme whereby he tricked innocent persons into believing he was performing legitimate medical tests upon them. Moreover, he overbore the will of his victims by asserting that he had legal authority to force them to undergo examination. Using this Gestapo-like tactic on uneducated victims created an atmosphere of intolerable oppressiveness, which made these assaults outrageously cruel. I agree wholeheartedly with the observations of the Appellate Division that in the totality of the circumstances, the nature of defendant’s conduct was exceptionally monstrous:
In each case the combination of the extraordinarily vicious character of defendant’s fictitious pose and the potential effect upon the victim’s health by the unwarranted invasion of his or her body by a medical or other instrument amply demonstrates outrageous and unhumanly cruel conduct. * * * [T]he aggravated element of the *323assault in this case lies in the vicious or evil nature of the attack, which is as abhorrent as one which is violent in character.
[144 N. J. Super. at 30]2
Another factor discounted by my dissenting Brothers is the psychological harm which these victim's may have suffered, particularly those who were informed that they indeed had cancer. This damage, considered in conjunction with the physical wounding of the victims, makes this case much more than a simple assault and battery.
The loathsome character of defendant’s conduct so increases the heinousness component of the viciousness equation that the physical injuries sustained by the three victims are sufficient to supply the harmful effect necessary to justify a conviction for atrocious assault and battery.
Justice Sullivan and Justice Handles join in this opinion.
The approach taken by our dissenting colleagues bears a remarkable resemblance to that of Justice Heher in dissent in State v. Ed*322wards, supra. I-Ie too argued emphatically that the injuries sustained by the victim, which he noted were “only scratches,” were too minor to sustain a conviction for atrocious assault and battery. See 28 N. J. at 302. The majority in Edwards nevertheless found these injuries to be substantial enough to justify a conviction under N. J. S. A. 2A :90-l. The majority specifically rejected the contention of the defendant, similar to that advanced by the« dissent herein, that the, relatively minor nature of the injuries prevents the act which inflicted them from being considered an atrocious assault and battery. Edwards’ holding was that the medical superficiality of the injuries does not establish their legal superficiality so as to preclude the wounding element of the offense from being satisfied. Thus, assessment of the medical aspects of the injuries alone is not dis-positive of their substantiality vel non.
My reading of • the indictment and other applicable papers convinces me that defendant’s disgusting charade of peering into a victim’s vagina with a flashlight to look for signs of cancer was indeed encompassed within the indictment. My dissenting Brothers err in assuming that this outrage to human dignity was out of the case. While this may not be a wound, it is surely an aggravating factor, which coupled with the wounding of that victim, made the case for atrocious assault in that particular instance all the stronger.