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New Jersey Assault Charge Lawyer – NJSA 2C:12-1

I frequently appear in courts across New Jersey to defend individuals against charges of assault. Unfortunately, this often involves domestic violence allegations as well. If you have been charged with assault in any New Jersey court, call now for a free consultation.

New Jersey Assault Charges – NJSA 2C:12-1
§ 2C:12-1. Assault
a. Simple assault. A person is guilty of assault if he:

(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or(2) Negligently causes bodily injury to another with a deadly weapon; or
(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.

Simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense.

b. Aggravated assault. A person is guilty of aggravated assault if he:

(1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury; or

(2) Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(3) Recklessly causes bodily injury to another with a deadly weapon; or

(4) Knowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in section 2C:39-1 f., at or in the direction of another, whether or not the actor believes it to be loaded; or

(5) Commits a simple assault as defined in subsection a. (1), (2) or (3) of this section upon:

(a) Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer; or

(b) Any paid or volunteer fireman acting in the performance of his duties while in uniform or otherwise clearly identifiable as being engaged in the performance of the duties of a fireman; or

(c) Any person engaged in emergency first-aid or medical services acting in the performance of his duties while in uniform or otherwise clearly identifiable as being engaged in the performance of emergency first-aid or medical services; or

(d) Any school board member, school administrator, teacher, school bus driver or other employee of a public or nonpublic school or school board while clearly identifiable as being engaged in the performance of his duties or because of his status as a member or employee of a public or nonpublic school or school board or any school bus driver employed by an operator under contract to a public or nonpublic school or school board while clearly identifiable as being engaged in the performance of his duties or because of his status as a school bus driver; or

(e) Any employee of the Division of Youth and Family Services while clearly identifiable as being engaged in the performance of his duties or because of his status as an employee of the division; or

(f) Any justice of the Supreme Court, judge of the Superior Court, judge of the Tax Court or municipal judge while clearly identifiable as being engaged in the performance of judicial duties or because of his status as a member of the judiciary; or

(g) Any operator of a motorbus or the operator’s supervisor or any employee of a rail passenger service while clearly identifiable as being engaged in the performance of his duties or because of his status as an operator of a motorbus or as the operator’s supervisor or as an employee of a rail passenger service; or

(h) Any Department of Corrections employee, county corrections officer, juvenile corrections officer, State juvenile facility employee, juvenile detention staff member, juvenile detention officer, probation officer or any sheriff, undersheriff, or sheriff’s officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority; or

(i) Any employee, including any person employed under contract, of a utility company as defined in section 2 of P.L.1971, c.224 (C.2A:42-86) or a cable television company subject to the provisions of the “Cable Television Act,” P.L.1972, c.186 (C.48:5A-1 et seq.) while clearly identifiable as being engaged in the performance of his duties in regard to connecting, disconnecting or repairing or attempting to connect, disconnect or repair any gas, electric or water utility, or cable television or telecommunication service; or

(6) Causes bodily injury to another person while fleeing or attempting to elude a law enforcement officer in violation of subsection b. of N.J.S.2C:29-2 or while operating a motor vehicle in violation of subsection c. of N.J.S.2C:20-10. Notwithstanding any other provision of law to the contrary, a person shall be strictly liable for a violation of this subsection upon proof of a violation of subsection b. of N.J.S.2C:29-2 or while operating a motor vehicle in violation of subsection c. of N.J.S.2C:20-10 which resulted in bodily injury to another person; or

(7) Attempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury; or

(8) Causes bodily injury by knowingly or purposely starting a fire or causing an explosion in violation of N.J.S.2C:17-1 which results in bodily injury to any emergency services personnel involved in fire suppression activities, rendering emergency medical services resulting from the fire or explosion or rescue operations, or rendering any necessary assistance at the scene of the fire or explosion, including any bodily injury sustained while responding to the scene of a reported fire or explosion. For purposes of this subsection, “emergency services personnel” shall include, but not be limited to, any paid or volunteer fireman, any person engaged in emergency first-aid or medical services and any law enforcement officer. Notwithstanding any other provision of law to the contrary, a person shall be strictly liable for a violation of this paragraph upon proof of a violation of N.J.S.2C:17-1 which resulted in bodily injury to any emergency services personnel; or

(9) Knowingly, under circumstances manifesting extreme indifference to the value of human life, points or displays a firearm, as defined in subsection f. of N.J.S.2C:39-1, at or in the direction of a law enforcement officer; or

(10) Knowingly points, displays or uses an imitation firearm, as defined in subsection f. of N.J.S.2C:39-1, at or in the direction of a law enforcement officer with the purpose to intimidate, threaten or attempt to put the officer in fear of bodily injury or for any unlawful purpose; or

(11) Uses or activates a laser sighting system or device, or a system or device which, in the manner used, would cause a reasonable person to believe that it is a laser sighting system or device, against a law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority. As used in this paragraph, “laser sighting system or device” means any system or device that is integrated with or affixed to a firearm and emits a laser light beam that is used to assist in the sight alignment or aiming of the firearm.

Aggravated assault under subsections b.(1) and b.(6) is a crime of the second degree; under subsections b.(2), b.(7), b.(9) and b.(10) is a crime of the third degree; under subsections b.(3) and b.(4) is a crime of the fourth degree; and under subsection b.(5) is a crime of the third degree if the victim suffers bodily injury, otherwise it is a crime of the fourth degree. Aggravated assault under subsection b.(8) is a crime of the third degree if the victim suffers bodily injury; if the victim suffers significant bodily injury or serious bodily injury it is a crime of the second degree. Aggravated assault under subsection b.(11) is a crime of the third degree.

c. (1) A person is guilty of assault by auto or vessel when the person drives a vehicle or vessel recklessly and causes either serious bodily injury or bodily injury to another. Assault by auto or vessel is a crime of the fourth degree if serious bodily injury results and is a disorderly persons offense if bodily injury results.

(2) Assault by auto or vessel is a crime of the third degree if the person drives the vehicle while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and serious bodily injury results and is a crime of the fourth degree if the person drives the vehicle while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and bodily injury results.

(3) Assault by auto or vessel is a crime of the second degree if serious bodily injury results from the defendant operating the auto or vessel while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) while:

(a) on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

(b) driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

(c) driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

Assault by auto or vessel is a crime of the third degree if bodily injury results from the defendant operating the auto or vessel in violation of this paragraph.

A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under subparagraph (a) of paragraph (3) of this section.

It shall be no defense to a prosecution for a violation of subparagraph (a) or (b) of paragraph (3) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing. Nor shall it be a defense to a prosecution under subparagraph (a) or (b) of paragraph (3) of this subsection that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.

As used in this section, “vessel” means a means of conveyance for travel on water and propelled otherwise than by muscular power.

d. A person who is employed by a facility as defined in section 2 of P.L.1977, c.239 (C.52:27G-2) who commits a simple assault as defined in paragraph (1) or (2) of subsection a. of this section upon an institutionalized elderly person as defined in section 2 of P.L.1977, c.239 (C.52:27G-2) is guilty of a crime of the fourth degree.

e. (Deleted by amendment, P.L.2001, c.443).

f. A person who commits a simple assault as defined in paragraph (1), (2) or (3) of subsection a. of this section in the presence of a child under 16 years of age at a school or community sponsored youth sports event is guilty of a crime of the fourth degree. The defendant shall be strictly liable upon proof that the offense occurred, in fact, in the presence of a child under 16 years of age. It shall not be a defense that the defendant did not know that the child was present or reasonably believed that the child was 16 years of age or older. The provisions of this subsection shall not be construed to create any liability on the part of a participant in a youth sports event or to abrogate any immunity or defense available to a participant in a youth sports event. As used in this act, “school or community sponsored youth sports event” means a competition, practice or instructional event involving one or more interscholastic sports teams or youth sports teams organized pursuant to a nonprofit or similar charter or which are member teams in a youth league organized by or affiliated with a county or municipal recreation department and shall not include collegiate, semi-professional or professional sporting events.
History:
L. 1978, c. 95; amended 1979, c. 178, § 22; 1981, c. 290, § 14; 1983, c. 101, § 1; 1985, c. 97, § 2; 1985, c. 444, § 1; 1990, c. 87, § 1; 1991, c. 237, § 2; 1991, c. 341, § 2; 1993, c. 219, § 2; 1995, c. 6, § 1; 1995, c. 181, § 1; 1995, c. 211, § 1; 1995, c. 307, § 2; 1997, c. 42, § 1; 1997, c. 119, § 1; 1999, c. 77, § 1, eff. April 30, 1999; 1999, c. 185, § 2, eff. Dec. 1, 1999; 1999, c. 281, § 1, eff. Feb. 1, 2000; 1999, c. 381, § 1, eff. Jan. 14, 2000; 2001, c. 215, § 1, eff. Aug. 20, 2001; 2001, c. 443, § 2, eff. Jan. 11, 2002; 2002, c. 53, § 1, eff. Aug. 3, 2002; 2003, c. 218, § 1, eff. Jan. 9, 2004; 2005, c. 2, § 1, eff. Jan. 19, 2005; 2006, c. 78, § 2, eff. Aug. 2, 2006.

 

Amendment Note:

2006 amendment, by Chapter 78, in b.(5)(d), inserted “public or nonpublic school or” three times preceding “school board”; and substituted “(i)” for “I” as the designation for the subparagraph following b.(5)(h).

Effective Dates:

Section 6 of L. 1999, c. 185 provides: “This act shall take effect on the first day of the fourth month after enactment.” Chapter 185, L. 1999, was approved on August 19, 1999.

Section 2 of L. 1999, c. 281 provides: “This act shall take effect on the first day of the second month following enactment.” Chapter 281, L. 1999, was approved on December 20, 1999.

Notable Cases:
Bankruptcy Law > Discharge & Dischargeability > Nondischarge of Individual Debts > Malicious & Reckless Behavior

1. Chapter 7 debtor was denied discharge of a state court default judgment awarded to a creditor in her personal injury suit, filed against the debtor after the debtor was alleged to have committed an unprovoked assault on the creditor, by reason of which assault the debtor had been convicted of assault under N.J. Stat. Ann. § 2C:12-1(a), because the record did not support a claim that the assault was either provoked or was the result of negligence; thus, because the resulting injury was “willful and malicious” within the meaning of 11 U.S.C.S. § 523(a)(6), an order denying dischargeability was proper. Milutin v. Cappozzolli (In re Cappozzolli), 2007 Bankr. LEXIS 1441 (Bankr. D.N.J. Apr. 16 2007).
Business & Corporate Law > Distributorships & Franchises > Terminations > Grounds for Termination

2. Because franchise owner’s conviction for third degree aggravated assault, in violation of N.J. Stat. Ann. § 2C:12-1(b)(2), required a finding beyond reasonable doubt that he intended to cause bodily injury with a deadly weapon, the offense had to be considered a crime involving moral turpitude for the purpose of determining whether the franchisor could terminate the parties’ franchise agreement pursuant to a provision of the Petroleum Marketing Practices Act, 15 U.S.C.S. § 2802(c)(12). Glenside West Corp. v. Exxon Co., U.S.A., Div. of Exxon Corp., 761 F. Supp. 1118, 1991 U.S. Dist. LEXIS 5230 (D.N.J. 1991).
Civil Procedure > Summary Judgment > Standards > General Overview

3. Because city and its police officers had probable cause to charge the arrestee with vehicular aggravated assault, harassment, and reckless driving under N.J. Stat. Ann. §§ 2C:33-4, 2C:12-1(b)(1) and 39:4-96, they were entitled to summary judgment on arrestee’s malicious prosecution and false arrest claims. Herman v. City of Millville, 2002 U.S. Dist. LEXIS 26300 (D.N.J. Mar. 21 2002), affirmed by 66 Fed. Appx. 363, 2003 U.S. App. LEXIS 8549 (3d Cir. N.J. 2003).
Civil Rights Law > Section 1983 Actions > Law Enforcement Officials > General Overview

4. Plaintiff wife of a police chief filed an action against defendants city, police department, and several city employees, asserting a Fourth Amendment violation under 42 U.S.C.S. § 1983, alleging she was falsely arrested under N.J. Stat. Ann. § 2C:12-1(b)(1), but summary judgment to defendants was upheld because a police clerk had stated that the wife accelerated the wife’s car towards the clerk and a child, coming very close to hitting them, and that they believed that the wife tried to run them down. Herman v. City of Millville, 66 Fed. Appx. 363, 2003 U.S. App. LEXIS 8549 (3d Cir. N.J. 2003).
Civil Rights Law > Section 1983 Actions > Scope

5. Prisoner’s 42 U.S.C.S. § 1983 action against a police officer was precluded as to the prisoner’s conviction for aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(1) because in order to convict the prisoner of aggravated assault, the jury must have found that the amount of force exercised by the prisoner exceeded that used by the police officer, and if a jury in the § 1983 action found that the police officer used unreasonable force to arrest the prisoner, that would mean that the police officer used unreasonably greater force than that used by the prisoner; therefore, a finding for the prisoner in his § 1983 action would necessarily imply the invalidity of his aggravated assault conviction. Smith v. Mitchell, 2000 U.S. Dist. LEXIS 20778 (D.N.J. Nov. 21 2000).
Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Double Jeopardy

6. Where defendant stabbed a dishwasher in a diner kitchen and while making his escape he kicked out a glass door in the diner, when defendant was convicted in the municipal court of malicious injury to property under former N.J. Stat. Ann. § 2A:170-36, and subsequently indicted by the grand jury and convicted by a petit jury for atrocious assault and battery under former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1), whether the same evidence test or the same transaction test was used, defendant’s plea of double jeopardy was not applicable because the kicking out of the door and the stabbing of the dishwasher were separate and distinct acts giving rise to two offenses; it was not fundamentally unfair to compel defendant to answer for the atrocious assault and battery charge merely because he was convicted as a disorderly person for kicking out the door. State v. Dutton, 112 N.J. Super. 402, 271 A.2d 593, 1970 N.J. Super. LEXIS 372 (App.Div. 1970).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery > General Overview

7. On appeal of the sentence imposed by a trial court of a maximum 18-month base term of incarceration and an 18-month parole disqualifying term as a result of defendant’s guilty plea to one count of fourth degree aggravated assault, the maximum base term was affirmed, despite defendant not admitting to the aggravating factors found by the trial judge at the plea hearing, as the sentencing judge was authorized to impose the agreed-upon sentence since defendant implicitly agreed to judicial factfinding in order to obtain a favorable plea agreement. However, the 18-month parole disqualifier was adjudged illegal because N.J. Stat. Ann. § 2C:43-6(b) prohibited the period of parole ineligibility to exceed one-half of the term of incarceration. State v. Soto, 385 N.J. Super. 247, 896 A.2d 1148, 2006 N.J. Super. LEXIS 132 (App.Div. 2006).

8. Under well-established canons of statutory construction, it was clear that the legislature had intended N.J. Stat. Ann. § 2C:12-1(b)(5)(d) to elevate simple assault against school employees to aggravated assault in the case of public school employees, not private school employees; appreciating that public policy might well be better served by a statute that protected all educational employees, the court suggested that the legislature consider the issue of expanding the statute’s coverage. State v. Cannarella, 186 N.J. 63, 891 A.2d 609, 2006 N.J. LEXIS 16 (2006).

9. Appellate court rejected defendant’s sufficiency of the evidence claims as lacking sufficient merit to warrant discussion in a written decision, pursuant to N.J. Ct. R. 2:11-3(e)(2), because the victims’ and the co-defendants’ testimony that defendant entered a victim’s house with the co-defendants, that defendant took part in threatening the victims in the house with guns, that defendant and his co-defendants robbed the victims, and that a victim was hit in the head was adequate to defeat a motion for judgment of acquittal and support the convictions; a reasonable jury could have found defendant’s guilt of the crime beyond a reasonable doubt after considering all of the State of New Jersey’s evidence and giving the State the benefit of all favorable evidence and inferences. State v. Fletcher, 380 N.J. Super. 80, 880 A.2d 1171, 2005 N.J. Super. LEXIS 257 (App.Div. 2005).

10. Under N.J. Code Ann. § 2C:12-1b(5)(d), simple assault was not elevated by the Code of Criminal Justice to aggravated assault when the victim was employed by a private school; hence, the superior court erred in denying defendant’s motion to dismiss an indictment charging him with third-degree aggravated assault, as the statute was meant to only protect public school employees. State v. Cannarella, 376 N.J. Super. 16, 868 A.2d 1141, 2005 N.J. Super. LEXIS 82 (App.Div. 2005), affirmed by 186 N.J. 63, 891 A.2d 609, 2006 N.J. LEXIS 16 (2006).

11. “Bodily injury” is, for all practical purposes, a legal element of aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1b.(5)(a). United States v. Rebelo, 358 F. Supp. 2d 400, 2005 U.S. Dist. LEXIS 4233 (D.N.J. 2005).

12. Person convicted of the disorderly persons offense of simple assault, contrary to N.J. Stat. Ann. § 2C:12-1(a)(1), has been convicted of a “misdemeanor crime of domestic violence” when the assault involved the use or attempted use of physical force against that person’s current or former spouse or domestic partner, and is thereby prohibited by 18 U.S.C.S. § 922(g)(9), commonly known as the Lautenberg Amendment to the Gun Control Act of 1968, 18 U.S.C.S. §§ 921-930, from owning or possessing any firearms that have, at any point, been shipped or transported in interstate or foreign commerce; thus, a remand was required after a trial court ordered the return of weapons to defendant, who had been convicted of a disorderly persons offense of simple assault against a spouse, to determine whether the seized firearms or any of their component parts had ever been shipped or transported in interstate or foreign commerce. State v. Wahl, 365 N.J. Super. 356, 839 A.2d 120, 2004 N.J. Super. LEXIS 21 (App.Div. 2004).

13. Use of a deadly weapon and an attempt to cause serious bodily injury as predicates for the application of the New Jersey No Early Release Act, N.J. Stat. Ann. § 2C:43-7.2, within the meaning of State v. Parolin, were not found, where defendant was convicted of second-degree robbery and third-degree aggravated assault, but was found not guilty of first-degree robbery, and second-degree aggravated assault. State v. Oliphant, 178 N.J. 245, 837 A.2d 1089, 2003 N.J. LEXIS 1566 (2003).

14. Police officers had probable cause to arrest a man, who was later shot by an officer and died from the bullet wound, for both disorderly conduct and simple assault; by struggling with the officers, the man risked bodily injury not only to himself but also to the officers, and he did not have the right to resist the officers whether or not he perceived the arrest to be wrongful. Vak La v. Hayducka, 269 F. Supp. 2d 566, 2003 U.S. Dist. LEXIS 10907 (D.N.J. 2003), appeal dismissed by 122 Fed. Appx. 557, 2004 U.S. App. LEXIS 25063 (3d Cir. N.J. 2004).

15. Plaintiff wife of a police chief filed an action against defendants city, police department, and several city employees, asserting a Fourth Amendment violation under 42 U.S.C.S. § 1983, alleging she was falsely arrested under N.J. Stat. Ann. § 2C:12-1(b)(5)(a), but summary judgment to defendants was upheld because a police officer had stated that the officer had motioned for wife to stop the wife’s car, the wife did not stop, and the officer thought the officer was going to be hit by the wife’s car. Herman v. City of Millville, 66 Fed. Appx. 363, 2003 U.S. App. LEXIS 8549 (3d Cir. N.J. 2003).

16. In the context of a charge of assault by pointing a firearm, in violation of N.J. Stat. Ann. § 2C:12-1(b)(4), both loaded and unloaded firearms are considered when ascertaining guilt. State v. Jules, 345 N.J. Super. 185, 784 A.2d 722, 2001 N.J. Super. LEXIS 409 (App.Div. 2001).

17. While the trial court did not tell the jury that the two offenses of assault by auto and aggravated assault had a qualitative difference in the recklessness required, that was evident from the additional element of “extreme indifference to the value of human life” charged on the aggravated assault offense. State v. Pigueiras, 344 N.J. Super. 297, 781 A.2d 1086, 2001 N.J. Super. LEXIS 373 (App.Div. 2001).

18. Trial court properly applied the New Jersey No Early Release Act, N.J. Stat. Ann. § 2C:43-7.2, in sentencing a defendant who was convicted of aggravated assault because the evidence showed that the jury found beyond a reasonable doubt that the defendant used a deadly weapon in commission of the offense. State v. Mclean, 2001 N.J. Super. LEXIS 366 (App.Div. Oct. 2 2001).

19. Prisoner’s 42 U.S.C.S. § 1983 action against a police officer was precluded as to the prisoner’s conviction for aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(1) because in order to convict the prisoner of aggravated assault, the jury must have found that the amount of force exercised by the prisoner exceeded that used by the police officer, and if a jury in the § 1983 action found that the police officer used unreasonable force to arrest the prisoner, that would mean that the police officer used unreasonably greater force than that used by the prisoner; therefore, a finding for the prisoner in his § 1983 action would necessarily imply the invalidity of his aggravated assault conviction. Smith v. Mitchell, 2000 U.S. Dist. LEXIS 20778 (D.N.J. Nov. 21 2000).

20. Because juvenile intended to kick student but mistakenly kicked teacher, simple assault could not be enhanced to aggravated assault pursuant to N.J. Stat. Ann. § 2C:12-1(b)(5)(d) because juvenile lacked the specific intent to commit assault on the teacher; the State was required to prove beyond a reasonable doubt, in addition to the other elements of the offense, that the actor knew the person he was assaulting was engaged in the performance of his duties or knew of his status as a teacher, or was aware of a high probability that he was, in fact, assaulting the teacher, rather than the other juvenile. State ex rel. S.B., 333 N.J. Super. 236, 755 A.2d 596, 2000 N.J. Super. LEXIS 282 (App.Div. 2000).

21. If an aggravated assault defendant was able to show that newly developed DNA techniques could yield definitive findings, such tests should be ordered under the supervision of the court, who then would determine whether any newly discovered evidence would probably change the jury’s verdict if a new trial were granted. State v. Velez, 329 N.J. Super. 128, 746 A.2d 1073, 2000 N.J. Super. LEXIS 103 (App.Div. 2000).

22. Where defendant was charged with violating a domestic violence restraining order in addition to aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1 and unlawful possession of a weapon in violation of N.J. Stat. Ann. §§ 2C:39-4 and 2C:39-5, trial counsel was not ineffective for failing to present the defense of intoxication permitted under N.J. Stat. Ann. § 2C:2-8(a); trial counsel discussed with defendant the defense of intoxication, but defendant was consistent in saying that he was the one attacked and was the victim and, as a result, a self-defense theory was pursued over an intoxication defense. State v. Keys, 331 N.J. Super. 480, 752 A.2d 368, 1998 N.J. Super. LEXIS 581 (Law Div. 1998), affirmed by 331 N.J. Super. 429, 752 A.2d 340, 2000 N.J. Super. LEXIS 221 (App.Div. 2000).

23. The death of a victim is not an element of the crime of N.J. Stat. Ann. § 2C:12-1(b), which defines aggravated assault. Hill v. Evening News Co., 314 N.J. Super. 545, 715 A.2d 999, 1998 N.J. Super. LEXIS 376 (App.Div. 1998).

24. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the trial court did not commit plain error in failing to sua sponte provide an instruction on the use of force in defense of others; the record was devoid of a rational basis upon which the jury could have found that defendant acted in defense of another inmate. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

25. Defendant’s 20-year prison term for his convictions for second-degree aggravated assault and fourth-degree aggravated assault, based on his conduct in punching a corrections officer in a county jail, was not excessive; deterrence was a permissible aggravating factor to consider in imposing sentence, and no double-counting occurred because the victim’s status as a law enforcement officer was only considered once for sentencing purposes after defendant’s fourth-degree aggravated assault conviction was merged into the second-degree conviction. Additionally, the trial court did not abuse his discretion in refusing to find any mitigating factors, and the sentence was consistent with precedent. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

26. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the jury could have been permitted to consider, as a lesser-included offense, third-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(5); the jury could have concluded that defendant did not attempt to inflict serious injury upon the officer, but that he did commit a simple assault upon the officer that resulted in bodily injury. Although the third-degree offense applied specifically to police officers, whereas the second-degree offense did not, N.J. Stat. Ann. § 2C:1-8d(1) required that the lesser offense be established by proof of the same or less than all the “facts,” not “elements,” required to establish the commission of the offense charged. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

27. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the jury could have been permitted to consider, as a lesser-included offense, third-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(5); the jury could have concluded that defendant did not attempt to inflict serious injury upon the officer, but that he did commit a simple assault upon the officer that resulted in bodily injury. Where the evidence in the record shows that the victim of an assault under N.J. Stat. Ann. § 2C:12-1b(1) is a law enforcement officer who suffered bodily injury, assault under N.J. Stat. Ann. § 2C:12-1b(5)(a) resulting in bodily injury is a lesser-included offense under N.J. Stat. Ann. § 2C:1-8d(1), because the victim’s status is not an element of the second-degree offense. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

28. Where defendant was convicted of fourth-degree aggravated assault, which merged with his conviction for second-degree aggravated assault, he was not entitled to reversal of his convictions on the ground that the trial court failed to sua sponte instruct the jury on third-degree assault as a lesser-included offense; although defendant was entitled to the instruction on third-degree assault, he did not request the instruction, and a specific jury finding that the officer suffered bodily injury would have elevated his conviction from a fourth-degree offense to a third-degree offense. Moreover, the jury was not forced to choose between acquitting defendant or finding him guilty of second-degree assault because it was also instructed on fourth-degree aggravated assault, and defendant may have strategically elected not to have the third-degree offense charged because of the differences in prison terms that are provided for under N.J. Stat. Ann. § 2C:43-6a(4) and N.J. Stat. Ann. § 2C:43-7a(4). State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

29. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the trial court did not commit plain error in failing to sua sponte provide a self-defense instruction; the evidence did not support defendant’s claim that he was in danger of being harmed by the officer. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

30. Guilty plea to a fourth degree aggravated assault, in violation of N.J. Stat. Ann. § 2C:12-1(b), should not have been accepted where defendant only agreed that he had a gun and “would say” that he pointed it at the victims, but he could not recall any details about the gun or who else in the group had guns. State v. Henries, 306 N.J. Super. 512, 704 A.2d 24, 1997 N.J. Super. LEXIS 503 (App.Div. 1997).

31. Because assault by automobile under N.J. Stat. Ann. § 2C:12-1 is merely a fourth-degree crime if serious bodily injury results and a disorderly persons offense if there is only bodily injury, the crime is well outside the presumptive denial area of the Pretrial Intervention Program under the guidelines and under N.J. Stat. Ann. § 2C:43-12. State v. Caliguiri, 305 N.J. Super. 9, 701 A.2d 920, 1997 N.J. Super. LEXIS 393 (App.Div. 1997), remanded by 152 N.J. 186, 704 A.2d 16, 1997 N.J. LEXIS 1002 (1997).

32. Prosecution for simple assault under N.J. Stat. Ann. § 2C:12-1(a)(1) was properly dismissed under N.J. Stat. Ann. § 2C:2-11(b) because all the attendant circumstances established that the defendant political candidate’s conduct, striking an opponent while waving a derogatory political flier at the opponent, was a de minimus infraction which was a trivial matter or did not cause or threaten the result which the criminal statute was designed to prevent. State v. Cabana, 315 N.J. Super. 84, 716 A.2d 576, 1997 N.J. Super. LEXIS 564 (Law Div. 1997), affirmed by 318 N.J. Super. 259, 723 A.2d 635, 1999 N.J. Super. LEXIS 38 (App.Div. 1999).

33. District court improperly granted summary judgment to the police officer on the false arrest claim in the plaintiff’s 42 U.S.C.S. § 1983 action arising from an altercation between the plaintiff and the police officer inside the plaintiff’s home because the plaintiff could not have committed the offense of disorderly conduct in his own home and, therefore, the police could not have had probable cause to arrest the plaintiff on the charge of disorderly conduct; it was a jury question as to whether the police had probable cause to arrest the plaintiff on the aggravated assault charge. Groman v. Township of Manalapan, 47 F.3d 628, 1995 U.S. App. LEXIS 2929 (3d Cir. N.J. 1995).

34. When a patrolman was injured while grabbing defendant from behind and throwing him to the ground, defendant could be guilty of aggravated assault on a law enforcement officer under N.J. Stat. Ann. § 2C:12-1(b)(5)(a) if he consciously disregarded a substantial and unjustifiable risk that the patrolman was a law enforcement officer, and that the patrolman would sustain bodily injury while trying to arrest him. State v. Parsons, 270 N.J. Super. 213, 636 A.2d 1077, 1994 N.J. Super. LEXIS 30 (App.Div. 1994).

35. Trial court improperly denied defendant use of the entrapment defense, N.J. Stat. Ann. § 2C:2-12(a) where defendant had been indicted for conspiring to commit a second degree aggravated assault in violation of N.J. Stat. Ann. §§ 2C:12-1(b)(1) and § 2C:5-2 because defendant was charged with no substantive offense as defendant was not charged with an attempt to cause serious bodily injury or any other violation of the statute which proscribes second degree aggravated assault or with the commission of any other degree of assault; and as defendant was indicted only for a conspiracy, and causing or threatening a bodily injury was not an element of conspiracy. State v. Soltys, 270 N.J. Super. 182, 636 A.2d 1061, 1994 N.J. Super. LEXIS 21 (App.Div. 1994).

36. Where there was a jury issue as to whether the injury suffered by the victim constituted “bodily injury” as defined by N.J. Stat. Ann. § 2C:11-1(a) or “serious bodily injury” as defined by N.J. Stat. Ann. § 2C:11-1(b), it was reversible error for the trial court not to instruct the jury that it could find defendant guilty of a third-degree aggravated assault pursuant to N.J. Stat. Ann. § 2C:12-1(b) as a lesser included offense of second-degree assault pursuant to N.J. Stat. Ann. § 2C:12-1(b). State v. Mingo, 132 N.J. 75, 622 A.2d 1294, 1993 N.J. LEXIS 70 (1993).

37. Resisting arrest, in violation of N.J. Stat. Ann. § 2C:29-2, was not a lesser-included offense of aggravated assault, in violation of N.J. Stat. Ann. § 2C:12-1, and defendant could be convicted of both offenses without violating N.J. Stat. Ann. § 2C:1-8. State v. Battle, 256 N.J. Super. 268, 606 A.2d 1119, 1992 N.J. Super. LEXIS 180 (App.Div. 1992).

38. Defendant was properly convicted of aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(4) where defendant gave the co-defendant a gun, even though defendant thought the gun was inoperable, because as an accomplice in an armed robbery, defendant was responsible for the co-defendant’s conduct independent of the fact that defendant gave the co-defendant the firearm with which the armed robbery was accomplished. State v. Robinson, 253 N.J. Super. 346, 601 A.2d 1162, 1992 N.J. Super. LEXIS 23 (App.Div. 1992).

39. Under N.J. Stat. Ann. § 2C:12-1(b)(4), the trial court committed reversible error when it did not inform the jury that it could convict defendant of aggravated assault only if it found that defendant was aware that it was practically certain that when he pointed the gun, he was pointing it at or in the direction of persons other than his victim. State v. Clausell, 121 N.J. 298, 580 A.2d 221, 1990 N.J. LEXIS 149 (1990).

40. Defendant’s convictions for second degree aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b) were vacated because the convictions merged with defendant’s convictions for attempted murder of the same victims in violation of N.J. Stat. Ann. §§ 2C:5-1 and 2C:11-3. State v. Russo, 243 N.J. Super. 383, 579 A.2d 834, 1990 N.J. Super. LEXIS 342 (App.Div. 1990).

41. State properly notified defendant of its intention to seek an extended term sentence when it filed its notice of motion seeking a mandatory extended term pursuant to N.J. Stat. Ann. § 2C:43-6(c) and N.J. Stat. Ann. § 2C:44-3(d), and trial court correctly determined on the record before it that defendant should receive a mandatory extended term sentence for a second Graves Act conviction, without the hearing required under N.J. Stat. Ann. § 2C:43-6(d), where the first conviction by guilty plea specifically referred to N.J. Stat. Ann. § 2C:12-1(b)(4), and the sentence that had been imposed was consistent with a Graves Act offense under N.J. Stat. Ann. § 2C:43-6(c). State v. Jefimowicz, 119 N.J. 152, 574 A.2d 428, 1990 N.J. LEXIS 60 (1990).

42. Trial judge erred in finding defendant guilty of assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(4) after having acquitted defendant of assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) based on the express finding that defendant had not acted under circumstances manifesting extreme indifference to the value of human life. State v. Graham, 223 N.J. Super. 571, 539 A.2d 322, 1988 N.J. Super. LEXIS 93 (App.Div. 1988).

43. Defendant’s conviction of assault in violation of 2C:12-1(b)(3) was a fourth degree crime; thus it could not be merged with defendant’s conviction of assault in violation of 2C:12-1(b)(4), another fourth degree crime, and defendant could not be sentenced to the minimum term of imprisonment for a third-degree offense of assault. State v. Graham, 223 N.J. Super. 571, 539 A.2d 322, 1988 N.J. Super. LEXIS 93 (App.Div. 1988).

44. Imposition of 10 years of imprisonment, the maximum possible term, and a four-year minimum term, for possession of a handgun for an unlawful purpose, together with the consecutive nature of the penalties for defendant’s simple assault convictions, was so clearly unreasonable as to shock the judicial conscience; the four-year minimum term imposed on the 18-year-old exceeded the three-year requirement of N.J. Stat. Ann. § 2C:43-6(c), and although the offense was serious, the gun was unloaded and defendant’s prior record consisted of two thefts. State v. Bryant, 237 N.J. Super. 102, 567 A.2d 212, 1988 N.J. Super. LEXIS 527 (App.Div. 1988), reversed by 117 N.J. 495, 569 A.2d 770, 1989 N.J. LEXIS 135 (1989).

45. Talk show host who knowingly hit a guest on his show committed simple assault, a de minimis infraction under N.J. Stat. Ann. § 2C:12-1, was denied a motion for dismissal where the court agreed with the prosecution that dismissal would have sent the wrong signal. State v. Downey, 242 N.J. Super. 367, 576 A.2d 945, 1988 N.J. Super. LEXIS 538 (Law Div. 1988).

46. Conviction for second degree aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) was proper as the jury was not charged with respect to the lesser offenses where there was no offense of causing serious bodily injury negligently, and no request was made for an instruction on causing bodily injury purposely, knowingly, or recklessly pursuant to N.J. Stat. Ann. § 2C:12-1(a)(1), and it was evident that the jury found that defendant caused the injury with the requisite culpability. State v. Sloane, 217 N.J. Super. 417, 526 A.2d 226, 1987 N.J. Super. LEXIS 1163 (App.Div. 1987), reversed by 111 N.J. 293, 544 A.2d 826, 1988 N.J. LEXIS 70 (1988).

47. Offense of recklessly causing bodily injury to another with a deadly weapon, a fourth degree aggravated assault set forth in N.J. Stat. Ann. § 2C:12-1(b)(3) was not a lesser included offense, as defined in N.J. Stat. Ann. § 2C:1-8(d), to the second degree crime of aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) because the fourth degree offense required use of a deadly weapon, which was not an element of the original second degree aggravated assault charge. State v. Jones, 214 N.J. Super. 68, 518 A.2d 496, 1986 N.J. Super. LEXIS 1488 (App.Div. 1986).

48. Gravamen of the assault crime under N.J. Stat. Ann. § 2C:12-1(b)(1) is the seriousness, as defined by N.J. Stat. Ann. § 2C:11-1(b), of the bodily injury actually inflicted or attempted to be inflicted; the bodily injury component of both the N.J. Stat. Ann. § 2C:12-1(b)(2) and N.J. Stat. Ann. § 2C:12-1(b)(3) is satisfied by the lesser degree of bodily injury as defined by N.J. Stat. Ann. § 2C:11-1(b) and thus, the bodily injury component of the crime under N.J. Stat. Ann. § 2C:12-1(b)(1) encompasses the bodily injury component of the crimes under N.J. Stat. Ann. § 2C:12-1(b)(2) and N.J. Stat. Ann. § 2C:12-1(b)(3). State v. Jones, 214 N.J. Super. 68, 518 A.2d 496, 1986 N.J. Super. LEXIS 1488 (App.Div. 1986).

49. Element of a deadly weapon in the aggravated assault crimes under N.J. Stat. Ann. § 2C:12-1(b)(2) and N.J. Stat. Ann. § 2C:12-1(b)(3) is not an element of the crime under N.J. Stat. Ann. § 2C:12-1(b)(1). State v. Jones, 214 N.J. Super. 68, 518 A.2d 496, 1986 N.J. Super. LEXIS 1488 (App.Div. 1986).

50. Defendant’s contention on appeal was erroneous that a conviction on a possession charge in violation of N.J. Stat. Ann. § 2C:39-4(d) should have been merged with convictions for aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(2); the merger doctrine was inapplicable where a guilty verdict on the possession charge could be reached without proof of the assault, and proof of the illegality of possession was not necessary for the aggravated assault charge. State v. Jones, 213 N.J. Super. 562, 517 A.2d 1219, 1986 N.J. Super. LEXIS 1508 (App.Div. 1986).

51. Defendant’s contention on appeal was erroneous that a conviction for aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(2) should have been merged with armed robbery convictions under N.J. Stat. Ann. § 2C:15-1; the merger doctrine was inapplicable where the use of a razor to inflict bodily harm, that continued long after the robbery offense had been committed, was a separate transaction from the threats made with the razor to facilitate the robbery. State v. Jones, 213 N.J. Super. 562, 517 A.2d 1219, 1986 N.J. Super. LEXIS 1508 (App.Div. 1986).

52. Defendant’s conviction for aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) was vacated; there was no evidence that defendant attempted to cause serious bodily injury where defendant grabbed the victim, threw her to the ground, and fled with her handbag. State v. Battle, 209 N.J. Super. 255, 507 A.2d 297, 1986 N.J. Super. LEXIS 1212 (App.Div. 1986).

53. Third degree aggravated assault with a deadly weapon was not a lesser included offense and could not be submitted to a jury without defendant’s consent; third degree aggravated assault required that the bodily injury be attempted or caused with a deadly weapon under N.J. Stat. Ann. § 2C:12-1(b)(2), but there was no requirement, however, that the attempt to cause or causing serious bodily injury in second degree aggravated assault be done with the use of a deadly weapon under N.J. Stat. Ann. § 2C:12-1(b)(1). State v. Mincey, 202 N.J. Super. 548, 495 A.2d 491, 1985 N.J. Super. LEXIS 1431 (Law Div. 1985).

54. Because the police status of a victim was an essential element of the crime of aggravated assault upon a law enforcement officer under N.J. Stat. Ann. § 2C:12-1(b)(5)(a), that element could not be used as an aggravating factor to impose a custodial sentence longer than the presumptive term or to impose a period of parole ineligibility. State v. Link, 197 N.J. Super. 615, 485 A.2d 1069, 1984 N.J. Super. LEXIS 1269 (App.Div. 1984).

55. Even ordinary negligence with a motor vehicle causing bodily injury could be disorderly conduct, pursuant to N.J. Stat. Ann. § 2C:12-1(a)(2). State v. Parker, 198 N.J. Super. 272, 486 A.2d 1275, 1984 N.J. Super. LEXIS 1287 (App.Div. 1984).

56. A person who purposely or knowingly causes another person serious bodily injury with a motor vehicle violates N.J. Stat. Ann. § 2C:12-1(b)(1). State v. Parker, 198 N.J. Super. 272, 486 A.2d 1275, 1984 N.J. Super. LEXIS 1287 (App.Div. 1984).

57. Where there was no substantial risk of death, a victim’s minor bodily injury could not support defendant’s conviction for aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(1), regardless of the outrageousness of defendant’s sexual attacks upon the victim. State v. Williams, 197 N.J. Super. 127, 484 A.2d 331, 1984 N.J. Super. LEXIS 1201 (App.Div. 1984).

58. Offenses were different and did not merge where each required proof of a fact not required by the other; count charging aggravated assault through the attempt to cause serious bodily injury to another did not require proof that defendant used a gun while count charging possession of a handgun with the purpose of using it unlawfully against the person did not require proof of defendant’s attempt to cause serious bodily injury. State v. Truglia, 97 N.J. 513, 480 A.2d 912, 1984 N.J. LEXIS 2719 (1984).

59. Defendant’s sentence was properly enhanced to a custodial sentence by the superior court, when he appealed his conviction from the municipal court for trial de novo on the record pursuant to N.J. Ct. R. 3:23-8; defendant was responsible for the error in the municipal court sentence, as he had lied to the municipal court judge about his criminal record at the time of sentencing therein, where he had been charged with attempting to cause and purposefully causing bodily injury to another, under N.J. Stat. Ann. § 2C:12-1(a)(1), and attempting by physical menace to put another in fear of imminent bodily injury, under N.J. Stat. Ann. § 2C:12-1(a)(3). State v. Pomo, 95 N.J. 13, 468 A.2d 428, 1983 N.J. LEXIS 3237 (1983).

60. Court granted defendant’s motion to have an aggravated assault charge downgraded to simple assault because defendant could not be convicted of aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(4) where his action of pointing an unloaded and inoperable gun at a victim did not exhibit an extreme indifference to the value of human life; the standard was not a subjective one of the victim’s belief. State v. Diaz, 190 N.J. Super. 639, 464 A.2d 1216, 1983 N.J. Super. LEXIS 932 (Law Div. 1983), overruled by State v. Bill, 194 N.J. Super. 192, 476 A.2d 813, 1984 N.J. Super. LEXIS 1101 (App.Div. 1984).

61. N.J. Stat. Ann. § 2C:12-1(b)(5) elevates even a simple assault upon a police officer to aggravated assault regardless of the severity of the injury. State v. Mirault, 92 N.J. 492, 457 A.2d 455, 1983 N.J. LEXIS 2355 (1983).

62. Because “reckless” conduct constituted a lesser kind of culpability than “knowing” conduct as set forth at N.J. Stat. Ann. § 2C:1-8(e), and proof of the least required culpability element is sufficient when alternative kinds are proscribed for the same offense or degree of offense, the trial court properly charged both elements, as alternative types of culpability, in regard to the charge against defendant of aggravated assault on a police officer in violation of N.J. Stat. Ann. § 2C:12-1(b)(5)(a), notwithstanding the fact that the charging instrument only alleged a “knowing” act by defendant, particularly in light of the fact that the “defense” of intoxication and justification of self-defense were advanced. State v. Murphy, 185 N.J. Super. 72, 447 A.2d 219, 1982 N.J. Super. LEXIS 825 (Law Div. 1982).

63. Where the indictable charge against plaintiff of assault with intent to kill was returned by the grand jury as a “no bill” and where all disorderly persons charges against plaintiff and his sons were thereafter dismissed by agreement, plaintiff’s action for malicious prosecution against the victim failed, as plaintiff failed to establish the element of a favorable termination of the criminal prosecution for assault with intent to kill. Mondrow v. Selwyn, 172 N.J. Super. 379, 412 A.2d 447, 1980 N.J. Super. LEXIS 446 (App.Div. 1980).

64. Off-duty police officer working at a concert was performing his duties under former N.J. Stat. Ann. § 2A:90-4(a) (now N.J. Stat. Ann. § 2C:12-1), and defendant’s conviction for assault and battery upon a police officer was affirmed. State v. De Santo, 172 N.J. Super. 27, 410 A.2d 704, 1980 N.J. Super. LEXIS 422 (App.Div. 1980).

65. Where defendant and his accomplices robbed various people at a theater and where defendant shot a victim who tried to seize his gun, defendant’s convictions of, inter alia, atrocious assault and battery in violation of former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1), and assault with an offensive weapon in violation of former N.J. Stat. Ann. § 21:90-3 (now N.J. Stat. Ann. § 2C:12-1), could not stand because he was deprived of a fair trial where the prosecutor’s questioning included an inescapable implication that a police officer had received defendant’s name from an informer and the prosecutor in summation again referred to the unknown informant; testimony regarding an informant’s statement was inadmissible hearsay, and it was improper to ask the jury to consider information outside of the evidence. State v. Thomas, 168 N.J. Super. 10, 401 A.2d 693, 1979 N.J. Super. LEXIS 758 (App.Div. 1979).

66. Defendant’s dog was an offensive weapon within the intent of former N.J. Stat. Ann. § 2A:90-3 (now N.J. Stat. Ann. § 2C:12-1). State in Interest of R., 165 N.J. Super. 346, 398 A.2d 150, 1979 N.J. Super. LEXIS 564, 7 A.L.R.4th 603 (App.Div. 1979).

67. Defendant’s convictions for assault with intent to rob under former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1) and assault while armed with a dangerous knife under former N.J. Stat. Ann. § 2A:151-5 were properly reversed; the trial court in-chambers ruling that it intended to charge the jury that voluntary intoxication was not a defense to any act by defendant was premature and therefore constituted error; the effect of the ruling was to preclude defendant from taking the stand in his own defense and testifying that he did not remember committing the offenses. State v. Stasio, 78 N.J. 467, 396 A.2d 1129, 1979 N.J. LEXIS 1170 (1979).

68. Defendant’s conviction for assault with an offensive weapon in violation of former N.J. Stat. Ann. § 2A:90-3 (now N.J. Stat. Ann. § 2C:12-1) was affirmed where the jury concluded that a starter’s pistol, which was pointed by defendant at the complaining witness, was an offensive weapon with the appearance of the capacity to fire a bullet, although without that capacity in fact; it was irrelevant that a starter’s pistol was not a weapon proscribed by former N.J. Stat. Ann. § 2A:151-51, for which a permit to carry was required. State v. Jones, 160 N.J. Super. 146, 388 A.2d 1332, 1978 N.J. Super. LEXIS 963 (App.Div. 1978).

69. There was sufficient evidence of the aggravation element required for a conviction of atrocious assault and battery under former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1) where defendant misrepresented himself as a doctor or health insurer in order to induce unsophisticated individuals to pay him to perform tests or treatment for cancer and sickle cell anemia, which involved invasive procedures. State v. Crumedy, 144 N.J. Super. 25, 364 A.2d 546, 1976 N.J. Super. LEXIS 650 (App.Div. 1976), affirmed by 76 N.J. 319, 387 A.2d 357, 1978 N.J. LEXIS 184 (1978).

70. The evidence was insufficient to support defendants’ conviction of assault with intent to kill, a violation of former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1), because the record showed that defendants did not intend to kill the victim when they “assaulted” him. State v. Mergott, 140 N.J. Super. 126, 355 A.2d 674, 1976 N.J. Super. LEXIS 900 (App.Div. 1976).

71. Former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1) entailed an intent to kill or take the life of the victim; because intent was the only real issue, it was necessary that the jury be charged correctly. State v. Natale, 138 N.J. Super. 241, 350 A.2d 501, 1975 N.J. Super. LEXIS 513 (App.Div. 1975).

72. Trial court erred by convicting and sentencing defendant for assault and battery upon a police officer, in violation of former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), and atrocious assault and battery upon the same police officer, in violation of former N.J. Stat. Ann. § 2A:90-1, where the offenses arose from the same incident and the legislature did not intend separate punishment for both. State v. Moran, 136 N.J. Super. 188, 345 A.2d 351, 1975 N.J. Super. LEXIS 612 (App.Div. 1975), affirmed by 73 N.J. 79, 372 A.2d 1092, 1977 N.J. LEXIS 183 (1977).

73. Trial court erred by convicting and sentencing defendant for assault and battery upon a police officer, in violation of former N.J. Stat. Ann. § 2A:90-4, and atrocious assault and battery upon the same police officer, in violation of former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1), where the offenses arose from the same incident and the legislature did not intend separate punishment for both. State v. Moran, 136 N.J. Super. 188, 345 A.2d 351, 1975 N.J. Super. LEXIS 612 (App.Div. 1975), affirmed by 73 N.J. 79, 372 A.2d 1092, 1977 N.J. LEXIS 183 (1977).

74. Defendant’s sentence of 11 to 12 years for assault with intent to commit robbery, pursuant to former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1), and his sentence of 9 to 10 years for committing assault when armed, pursuant to former N.J. Stat. Ann. § 2A:151-5 (now N.J. Stat. Ann. § 2C:15-1), were properly aggregated because the fact that defendant was armed at the time he committed the assault was an aggravating factor. State v. Jones, 66 N.J. 563, 334 A.2d 20, 1975 N.J. LEXIS 236 (1975).

75. Conviction for assault with a deadly weapon under former N.J. Stat. Ann. § 2A:90-3 (now N.J. Stat. Ann. § 2C:12-1) was affirmed because defendant pointed an unloaded gun and the victim had a well-founded apprehension of peril. State v. Drayton, 114 N.J. Super. 490, 277 A.2d 398, 1971 N.J. Super. LEXIS 639 (App.Div. 1971).

76. Defendant was properly convicted of assault and battery upon a law enforcement officer after defendant attacked a county penitentiary correction officer during a penitentiary riot. State v. Grant, 102 N.J. Super. 164, 245 A.2d 528, 1968 N.J. Super. LEXIS 471 (App.Div. 1968).

77. Judgment of the trial court, which convicted defendants of the crime of assault and battery upon a police officer, was affirmed, because no error existed in the trial court’s charge on the law of aiding and abetting, and defendants jointly participated in the crime. State v. Jefferson, 101 N.J. Super. 519, 245 A.2d 30, 1968 N.J. Super. LEXIS 554 (App.Div. 1968).

78. Defendant’s motion was denied where defendant sought to quash his indictment for unlawfully and maliciously committing an assault upon a victim with a certain offensive weapon and instrument, in violation of former N.J. Stat. Ann. § 2A:90-3 (now N.J. Stat. Ann. § 2C:12-1); evidence showing a persistent absence of Negro grand jurors and a disproportionate number of grand jurors engaged in white-collar professions did not prove systematic, intentional, and purposeful discrimination. State v. Rochester, 105 N.J. Super. 529, 253 A.2d 558, 1967 N.J. Super. LEXIS 350 (Law Div. 1967), affirmed by 54 N.J. 85, 253 A.2d 474, 1969 N.J. LEXIS 176 (1969).

79. Defendant’s conviction for assault with an offensive weapon was affirmed because even though no intent to rob was shown, the statute defendant was convicted under also criminalized assault with an offensive weapon. State v. Jackson, 90 N.J. Super. 306, 217 A.2d 328, 1966 N.J. Super. LEXIS 397 (App.Div. 1966).

80. Defendant’s convictions for two violations of the Disorderly Persons Act, former N.J. Stat. Ann. §§ 2A:170-3 and 2A:170-26, had to be reversed and remanded because a magistrate was without jurisdiction to try defendant for assaulting a police officer because such an offense constituted a high misdemeanor; defendant should have been prosecuted under former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1). State v. States, 84 N.J. Super. 404, 202 A.2d 225, 1964 N.J. Super. LEXIS 555 (Cty. Ct. 1964), reversed by 44 N.J. 285, 208 A.2d 633, 1965 N.J. LEXIS 226 (1965).

81. Disorderly conduct was a lesser included offense of atrocious assault and battery but not of making threats to kill and murder. Where defendants were convicted of disorderly conduct stemming from an altercation, double jeopardy barred a subsequent charge of atrocious assault and battery but did not bar the charge of making threats to kill and murder. State v. Berry, 41 N.J. 547, 197 A.2d 687, 1964 N.J. LEXIS 259 (1964).

82. Court, in affirming defendant’s conviction for assault and battery under former N.J. Stat. Ann. § 2A:170-26 (now N.J. Stat. Ann. § 2C:12-1), rejected his defense of the protection of property on the ground that defendant was not in actual possession of the fence posts at the time he committed the assault; defendant assaulted a neighboring property owner who was demolishing the fence posts that were on his, not defendant’s property. State v. Rullis, 79 N.J. Super. 221, 191 A.2d 197, 1963 N.J. Super. LEXIS 397 (App.Div. 1963).

83. Conditioning defendant’s exculpating justification on whether the victim would have been legally justified in taking similar defensive measures based on facts as the victim knew them to be, rather than on excusing defendant if his conduct was justified on the basis of facts as he reasonably concluded them to be, was prejudicially erroneous. State v. Chiarello, 69 N.J. Super. 479, 174 A.2d 506, 1961 N.J. Super. LEXIS 553 (App.Div. 1961).

84. Conviction for atrocious assault and battery pursuant to former N.J. Stat. Ann. 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1) was upheld where the jury was instructed on defendant’s duty to retreat; defendant was only allowed to use resistance necessary to defend himself although the fight began as a simple assault. State v. Abbott, 64 N.J. Super. 191, 165 A.2d 537, 1960 N.J. Super. LEXIS 352 (App.Div. 1960), reversed by 36 N.J. 63, 174 A.2d 881, 1961 N.J. LEXIS 247 (1961).

85. Whether injuries of the victim were sufficient to warrant conviction for atrocious assault and battery, meaning it was an assault that was brutal, inhumane, or cruel, was a determination for the judge as the trier of fact in a bench trial which the reviewing court found reasonable and supported by evidence the victim had been grabbed by the throat, dragged into a lot, and left on the verge of unconsciousness fearing death. State v. Edwards, 28 N.J. 292, 146 A.2d 209, 1958 N.J. LEXIS 166 (1958).

86. In defendants’ prosecution for atrocious assault and battery, in violation of former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1), a wounding within the meaning of former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1) did not necessarily entail a breaking of the skin. State v. Riley, 28 N.J. 188, 145 A.2d 601, 1958 N.J. LEXIS 156 (1958), writ of certiorari denied by 359 U.S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832, 1959 U.S. LEXIS 1147 (1959), writ of certiorari denied by 361 U.S. 879, 80 S. Ct. 166, 4 L. Ed. 2d 117 (1959).

87. In an action for atrocious assault and battery, the trial court improperly denied defendants’ requests to compel attendance of an alibi witness who had failed to respond to a subpoena where the absent witness could have potentially provided evidence of defendant’s absence from the scene of the crime. State v. Maxwell, 50 N.J. Super. 298, 142 A.2d 108, 1958 N.J. Super. LEXIS 497 (App.Div. 1958).

88. As defendant’s age and defendant’s specific intent were necessary elements of the crimes charged under former N.J. Rev. Stat. § 2:163-1 (now N.J. Stat. Ann. § 2C:14-2) and former N.J. Rev. Stat. § 2:110-2 (now N.J. Stat. Ann. § 2C:12-1), the indictments filed against defendant which failed to include such information were insufficient; therefore, defendant’s convictions for these crimes were reversed. State v. Lefante, 23 N.J. Super. 511, 93 A.2d 220, 1952 N.J. Super. LEXIS 675 (App.Div. 1952), reversed by 12 N.J. 505, 97 A.2d 472, 1953 N.J. LEXIS 271 (1953).

89. Defendant’s sentence to 30 years’ confinement for a conviction of assault with intent to kill, former N.J. Rev. Stat. § 2:110-2 (now N.J. Stat. Ann. § 2C:12-1) was illegal on the ground that, while he was a repeat offender, the State had failed to charge him as such; in setting aside the sentence and by imposing a sentence of 12 years to be served consecutively to and not concurrently with the other sentences, the trial court acted properly because it had substantially reduced defendant’s sentence and did not increase its severity. State v. Weeks, 6 N.J. Super. 395, 71 A.2d 644, 1950 N.J. Super. LEXIS 879 (App.Div. 1950).

90. A trial court erred in sentencing a defendant who had been indicted for assault with intent to commit robbery in violation of former N.J. Rev. Stat. § 2:110-2 (now N.J. Stat. Ann. § 2C:12-1), and assault when armed with a revolver in violation of former N.J. Rev. Stat. § 2:176-5 (now N.J. Stat. Ann. § 2C:15-1), because by convicting defendant of assault with an intent to rob the jury impliedly acquitted him of the greater charge of assault with a revolver with an intent to rob. State v. Burns, 4 N.J. Super. 34, 66 A.2d 439, 1949 N.J. Super. LEXIS 737 (App.Div. 1949).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery > Aggravated Offenses > General Overview

91. At a jury trial on charges of aggravated assault, unlawful possession of a firearm, and possession of a weapon for an unlawful purpose, the State’s witnesses were properly allowed to testify that the defendant was known to carry a gun and had been seen carrying the gun in question on other occasions where the testimony was introduced to tie the gun which was found at the scene of the crime to defendant; further, the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice to the defendant because, in order to prove its case, the State needed to establish that the gun was in the possession of defendant on the date in question and, in an effort to do so, the State attempted to show that defendant in fact owned the gun and, in addition, the defense had the opportunity to cross-examine the witnesses and to provide its own witness who denied seeing defendant with the gun. State v. Carswell, 303 N.J. Super. 462, 697 A.2d 171, 1997 N.J. Super. LEXIS 342 (App.Div. 1997).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery > Aggravated Offenses > Elements

92. While reliance on a presentence report (PSR) to establish sentencing facts that increased the penalty beyond the statutory maximum was error, but reliance on the defendant’s admission of facts contained in the PSR that defendant was removed following a crime of violence under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii), aggravated assault under N.J. Stat. Ann. § 2C:12-1b(7), was permitted. United States v. Ramirez, 557 F.3d 200, 2009 U.S. App. LEXIS 1886 (5th Cir. Tex. 2009).

93. No violation of an order of sequestration or defendant’s constitutional rights occurred when the victim remained in the courtroom after testifying, overheard defendant speak, and was recalled to make a vocal identification of defendant during his trial on assault and robbery charges as there was no intent to recall the victim when he was allowed to remain in the courtroom; no objection was made when the victim requested to remain therein; and, defendant had no constitutional right to exclude the victim from the courtroom while the victim had a constitutional right to remain after concluding his testimony. State v. Williams, 404 N.J. Super. 147, 960 A.2d 805, 2008 N.J. Super. LEXIS 261 (App.Div. 2008).

94. With regard to reinstating defendant’s convictions for child abuse, it was determined on appeal that the trial court did not abuse its discretion in determining that a child’s statements to his mother and a Division of Youth and Family Services worker were properly admitted into evidence as excited utterances under N.J. R. Evid. 803(c)(2) as the child’s statements were not testimonial and, hence, their admission at trial did not run afoul of the Confrontation Clause. State v. Buda, 195 N.J. 278, 949 A.2d 761, 2008 N.J. LEXIS 789 (2008), remanded by 2008 N.J. Super. Unpub. LEXIS 2551 (App.Div. July 24, 2008).

95. In a prosecution for first degree robbery, N.J.S.A. 2C:15-1, and second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), the evidence was sufficient to withstand defendant’s motion for a judgment of acquittal, and the jury’s verdict did not constitute a miscarriage of justice; the jury could reasonably find based on the evidence that defendant and his accomplices either inflicted or attempted to inflict serious bodily injury on an undercover agent while in the course of attempting to steal his money. State v. Leopardi, 305 N.J. Super. 70, 701 A.2d 952, 1997 N.J. Super. LEXIS 422 (App.Div. 1997).

96. Because defendant’s defense theory was that he committed aggravated assault but did not cause the victim’s death, trial court’s instruction on simple manslaughter was not a constitutionally adequate substitute for the instruction on aggravated assault requested by defendant; although aggravated assault (N.J. Stat. Ann. § 2C:12-1(b)(1)), aggravated manslaughter (N.J. Stat. Ann. § 2C:11-4(a)), and simple manslaughter (N.J. Stat. Ann. § 2C:11-4(c)) had different levels of culpability, the factual question placed in issue by the defense was the causation of the victim’s death, not the defendant’s level of culpability, and the fact that the jury chose aggravated manslaughter rather than simple manslaughter did not necessarily mean that the jury was convinced beyond a reasonable doubt that defendant caused the victim’s death. Vujosevic v. Rafferty, 844 F.2d 1023, 1988 U.S. App. LEXIS 4955 (3d Cir. N.J. 1988).

97. Defendant’s single attack on a police officer in violation of both the atrocious assault and battery statute, former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1), and the assault and battery upon a police officer statute, former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), could result in only one conviction and punishment, not two, although the offenses did not merge. State v. Richardson, 73 N.J. 82, 372 A.2d 1093, 1977 N.J. LEXIS 184 (1977).

98. Where defendant was indicted for the commission of a homicide by means of a violent physical attack, the murder charge under N.J. Stat. Ann. § 2A:113-2 (now N.J. Stat. Ann. § 2C:11-3) also included the elements of atrocious assault and battery under N.J. Stat. Ann. § 2A:90-1(now N.J. Stat. Ann. § 2C:12-1), and defendant was fully aware that he was accused of participating in a brutal physical attack. State v. Zelichowski, 52 N.J. 377, 245 A.2d 351, 1968 N.J. LEXIS 248 (1968).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery > Aggravated Offenses > Penalties

99. Eighteen year prison term, which was the sentence recommended by the plea agreement, and a subsequent five-year period of parole supervision on count one, with a concurrent five-year term and subsequent three-year period of parole supervision on the other count, both subject to an 85 percent parole disqualifier, which was imposed against a defendant following his convictions for first-degree manslaughter and second-degree aggravated assault, was upheld on appeal as it was valid and within the trial court’s discretion to reject the applicability of the mitigating factors argued by the defendant. The Supreme Court of New Jersey found no basis whatsoever for questioning the trial court’s understanding of its authority and that the trial judge unequivocally expressed his recognition that although the defendant entered into a negotiated plea agreement, the trial court, and it alone, had the exclusive authority to accept or reject the plea agreement; and, under the circumstances, the sentence imposed was clearly the sentence that the trial court chose to impose, and the trial court adhered to the sentencing principles set forth in the guidelines and defined in case law. State v. Bieniek, 200 N.J. 601, 985 A.2d 1251, 2010 N.J. LEXIS 6 (2010).

100. Presumptive sentence of four years imposed for a conviction for aggravated assault in the fourth degree, pursuant to N.J. Stat. Ann. § 2C:12-1(b), was illegal under N.J. Stat. Ann. §§ 2C:43-6(a)(4), 2C:43-7(a)(5), and 2C:44-3(d), which provided for a maximum 18-month sentence for a fourth degree crime, with a maximum extended term of five years. State v. Naji, 205 N.J. Super. 208, 500 A.2d 723, 1985 N.J. Super. LEXIS 1516 (App.Div. 1985).

101. Defendant’s conviction for assault and battery upon a police officer in the performance of his duties and his nine-month sentence therefor were affirmed, where witnesses testified that defendant struck a police officer with nunchaka sticks, breaking his wrist, as the officer attempted to handcuff another person involved in a disturbance in a city hall. State v. Sawicky, 164 N.J. Super. 93, 395 A.2d 878, 1978 N.J. Super. LEXIS 1184 (App.Div. 1978).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery > Simple Offenses > General Overview

102. In defendant’s trial on a charge of assault and battery upon a law enforcement officer in violation of former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), the trial court did not err in precluding defendant from testifying that he had previously sustained injuries and been hospitalized due to a kidnapping and beating; while these factors had some bearing on defendant’s state of mind or intent at the time of his apprehension and his resistance to the officer’s attempt to arrest him, the possibility that he believed that he was being kidnapped rather than arrested would have been collateral to the essential issues to be resolved and would produce confusion and undue consumption of time. State v. Moriarty, 133 N.J. Super. 563, 338 A.2d 14, 1975 N.J. Super. LEXIS 853 (App.Div. 1975).

103. In defendant’s trial on a charge of assault and battery upon a law enforcement officer in violation of former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), the trial court did not commit reversible error in precluding defendant from testifying that he had previously sustained injuries and been hospitalized due to a kidnapping and beating as a means of establishing the defense of self-defense or justified resistance; the impact of the ruling was not substantial in light of the convincing evidence that the police officers identified themselves, and that defendant committed an assault and battery while attempting to escape from their efforts to restrain him. State v. Moriarty, 133 N.J. Super. 563, 338 A.2d 14, 1975 N.J. Super. LEXIS 853 (App.Div. 1975).

104. In defendant’s trial on a charge of assault and battery upon a law enforcement officer in violation of former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), there was no evidence remotely suggesting that force was ever directed at defendant or that force was unnecessarily applied in any way to effectuate his detention where defendant was approached by two police officers after they had boxed in his vehicle with theirs, both police officers displayed their identifications to defendant and told him that they had a search warrant for the car and for defendant’s person, defendant attempted to move his car after being ordered to shut off the ignition and get out of the vehicle, and one of the officers lunged in and turned off the ignition. State v. Moriarty, 133 N.J. Super. 563, 338 A.2d 14, 1975 N.J. Super. LEXIS 853 (App.Div. 1975).

105. Every person is under an obligation to submit to an arrest and to refrain from using force to resist either the initial apprehension or any continued detention in the custody of a law enforcement officer; if a person under those circumstances jostles, grapples, pushes, or shoves the arresting officer, he commits an unlawful act. State v. Moriarty, 133 N.J. Super. 563, 338 A.2d 14, 1975 N.J. Super. LEXIS 853 (App.Div. 1975).

106. In defendant’s trial on a charge of assault and battery upon a law enforcement officer in violation of former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), a charge that defendant’s unlawful intent was implicit in the wrongful act, involving, as it did, resisting arrest, was not erroneous. State v. Moriarty, 133 N.J. Super. 563, 338 A.2d 14, 1975 N.J. Super. LEXIS 853 (App.Div. 1975).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery > Simple Offenses > Elements

107. Defendant’s conduct of placing the victim in a headlock for 20 to 30 seconds, squeezing his neck and yanking and swinging him around was sufficient to establish that the victim incurred physical pain to satisfy the element of a bodily injury required for the simple assault conviction against defendant, despite no testimony about the victim’s pain and that he did not sustain bruises or seek or receive treatment. State v. Stull, 403 N.J. Super. 501, 959 A.2d 286, 2008 N.J. Super. LEXIS 238 (App.Div. 2008).

108. Where the arresting officer testified that (1) when he told defendant he was going to take him into custody, defendant resisted by pulling back, and struck the officer in the chest with his elbow; and (2) defendant refused to be handcuffed during a lawful arrest, the evidence had been sufficient to adjudicate defendant delinquent of an offenses that would have constituted fourth-degree aggravated assault (N.J. Stat. Ann. § 2C:12-1(b)(5)(a)) State ex rel. X.B., 402 N.J. Super. 23, 952 A.2d 521, 2008 N.J. Super. LEXIS 168 (App.Div. 2008).

109. Defendant’s robbery conviction under N.J. Stat. Ann. § 2C:15-1 was reversed because the jury should have been allowed, pursuant to N.J. Stat. Ann. § 2C:1-8(d), to consider whether defendant was guilty of the lesser-included offense of simple assault under N.J. Stat. Ann. § 2C:12-1, rather than robbery, because the evidence allowed a rational juror to find that defendant had no part in taking the victim’s property, but, rather, was angry with the victim, causing defendant to place the victim in fear of serious bodily injury. N.J. v. Pedro Covil, 2007 N.J. Super. Unpub. LEXIS 2749 (July 12, 2007).

110. Simple assault under N.J. Stat. Ann. § 2C:12-1(a)(3), which consists of an “attempt by physical menace to put another in fear of imminent serious bodily injury,” cannot be a “misdemeanor crime of domestic violence” within the intent of the Lautenberg Amendment, under which a convicted person is prohibited from possessing a firearm, because this type of simple assault does not have, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon. Frazier v. Northern State Prison, Dept. of Corrections, 392 N.J. Super. 514, 921 A.2d 479, 2007 N.J. Super. LEXIS 136 (App.Div. 2007).

111. Corrections officer was improperly terminated on grounds that his simple assault conviction, pursuant to N.J. Stat. Ann. § 2C:12-1(a)(3), was a “misdemeanor crime of domestic violence” under the Laughtenberg Amendment that barred him from possessing a gun, as simple assault does not have as an element the use or attempted use of physical force, or the threatened use of deadly weapon. Frazier v. Northern State Prison, Dept. of Corrections, 392 N.J. Super. 514, 921 A.2d 479, 2007 N.J. Super. LEXIS 136 (App.Div. 2007).

112. Chapter 7 debtor was denied discharge of a state court default judgment awarded to a creditor in her personal injury suit, filed against the debtor after the debtor was alleged to have committed an unprovoked assault on the creditor, by reason of which assault the debtor had been convicted of assault under N.J. Stat. Ann. § 2C:12-1(a), because the record did not support a claim that the assault was either provoked or was the result of negligence; thus, because the resulting injury was “willful and malicious” within the meaning of 11 U.S.C.S. § 523(a)(6), an order denying dischargeability was proper. Milutin v. Cappozzolli (In re Cappozzolli), 2007 Bankr. LEXIS 1441 (Bankr. D.N.J. Apr. 16 2007).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery > Simple Offenses > Penalties

113. Although a charge of assault and battery is a disorderly persons offense and is a petty offense rather than a crime and although a defendant is not entitled to a jury trial for a petty offense, if several petty offenses arise out of a single event, a jury trial should be offered to defendant if the imposed punishment could exceed the maximum authorized for a single petty offense. State v. Owens, 54 N.J. 153, 254 A.2d 97, 1969 N.J. LEXIS 188 (1969), writ of certiorari denied by 396 U.S. 1021, 90 S. Ct. 593, 24 L. Ed. 2d 514, 1970 U.S. LEXIS 3396 (1970).

114. Imposition of consecutive sentences was not improper because the five offenses of which defendant was found guilty did not comprise a single continuous transaction where they involved (1) the planning and perpetration of the robbery, the wanton maiming of the officer in order to prevent pursuit and apprehension, and (3) the larceny of her car and kidnapping of a victim in order to facilitate flight. These represented a sequence of separate events deliberately undertaken in succession rather than a single episode, as it could hardly be contended that when the robbery was planned it was anticipated that a police officer would intervene and conduct such a vigorous pursuit that it would be necessary to shoot him or that a breakdown of defendant’s car would occur and require another means of escape. State v. Cox, 101 N.J. Super. 470, 244 A.2d 693, 1968 N.J. Super. LEXIS 549 (App.Div. 1968).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Domestic Offenses > General Overview

115. Person convicted of the disorderly persons offense of simple assault, contrary to N.J. Stat. Ann. § 2C:12-1(a)(1), is convicted of a “misdemeanor crime of domestic violence” when the assault involves the use or attempted use of physical force against that person’s current or former spouse or domestic partner, which is thereby prohibited by 18 U.S.C. § 922(g)(9), commonly known as the Lautenberg Amendment to the Gun Control Act of 1968, 18 U.S.C. §§ 921-930, from owning or possessing any firearms that have, at any point, been shipped or transported in interstate or foreign commerce. State v. Wahl, 365 N.J. Super. 356, 839 A.2d 120, 2004 N.J. Super. LEXIS 21 (App.Div. 2004).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Domestic Offenses > Domestic Assault

116. As a husband’s simple assault on his wife, to whom he was still married after 10 years, was an apparent aberration in an otherwise law-abiding life, he was entitled to have his criminal records expunged notwithstanding the prosecutor’s objection. In re Criminal Records of H.M.H., 404 N.J. Super. 174, 960 A.2d 821, 2008 N.J. Super. LEXIS 227 (Ch.Div. 2008).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Robbery > General Overview

117. Victim’s identification of defendant as the person who attacked him and stole his leather coat, wallet, and shopping bag provided sufficient evidence to support the inmate’s conviciton for robbery and aggravated assault. Miller v. Sherrer, 2005 U.S. Dist. LEXIS 16417 (D.N.J. Aug. 3 2005).

118. Use of a deadly weapon and an attempt to cause serious bodily injury as predicates for the application of the New Jersey No Early Release Act, N.J. Stat. Ann. § 2C:43-7.2, within the meaning of State v. Parolin, were not found, where defendant was convicted of second-degree robbery and third-degree aggravated assault, but was found not guilty of first-degree robbery, and second-degree aggravated assault. State v. Oliphant, 178 N.J. 245, 837 A.2d 1089, 2003 N.J. LEXIS 1566 (2003).

119. In a prosecution for first degree robbery, N.J.S.A. 2C:15-1, and second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), the evidence was sufficient to withstand defendant’s motion for a judgment of acquittal, and the jury’s verdict did not constitute a miscarriage of justice; the jury could reasonably find based on the evidence that defendant and his accomplices either inflicted or attempted to inflict serious bodily injury on an undercover agent while in the course of attempting to steal his money. State v. Leopardi, 305 N.J. Super. 70, 701 A.2d 952, 1997 N.J. Super. LEXIS 422 (App.Div. 1997).

120. Consecutive sentences for assault to commit carnal abuse upon a female 14 years of age, former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1), and carnal abuse of another 14 year old female, former N.J. Stat. Ann. § 2A:138-1 in addition to armed robbery, were affirmed on appeal; the intent behind the crimes was different notwithstanding the fact the victim of both armed robbery and the sex offense was the same person. State v. Warfield, 166 N.J. Super. 129, 399 A.2d 303, 1979 N.J. Super. LEXIS 622 (App.Div. 1979).

121. Defendant’s conviction for assault with an offensive weapon was affirmed because even though no intent to rob was shown, the statute defendant was convicted under also criminalized assault with an offensive weapon. State v. Jackson, 90 N.J. Super. 306, 217 A.2d 328, 1966 N.J. Super. LEXIS 397 (App.Div. 1966).

122. Notice of appeal was not timely filed, pursuant to N.J. Ct. R. 1:3-1(a), from defendant’s conviction for armed robbery under former N.J. Stat. Ann. §§ 2A:151-41 and 2A:141-1 (now N.J. Stat. Ann. § 2C:15-1), and assault with intent to rob under former N.J. Stat. Ann. §§ 2A:90-3 and 2A:141-1 (now N.J. Stat. Ann. § 2C:12-1); while his original petition for leave to appeal in forma pauperis tolled the time for filing the notice of appeal under R.R. 1:3-3(b), the denial of the petition again started the clock, and when some 16 days later, he applied for a rehearing of his petition, such untimely application did not operate to re-toll the period for appeal under N.J. Ct. R. 1:9-4, 2:9-2 and 1:3-3(e). State v. Wines, 47 N.J. Super. 235, 135 A.2d 543, 1957 N.J. Super. LEXIS 632 (App.Div. 1957).

123. A trial court erred in sentencing a defendant who had been indicted for assault with intent to commit robbery in violation of former N.J. Rev. Stat. § 2:110-2 (now N.J. Stat. Ann. § 2C:12-1), and assault when armed with a revolver in violation of former N.J. Rev. Stat. § 2:176-5 (now N.J. Stat. Ann. § 2C:15-1), because by convicting defendant of assault with an intent to rob the jury impliedly acquitted him of the greater charge of assault with a revolver with an intent to rob. State v. Burns, 4 N.J. Super. 34, 66 A.2d 439, 1949 N.J. Super. LEXIS 737 (App.Div. 1949).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Robbery > Unarmed Robbery > Elements

124. When a defendant charged with robbery, under N.J. Stat. Ann. § 2C:15-1, requested submission of the less serious offense of simple assault, under N.J. Stat. Ann. § 2C:12-1, the difference in the two crimes’ elements did not change the standard for evaluating the adequacy of the evidence required to submit a lesser-included offense charge to a jury. N.J. v. Pedro Covil, 2007 N.J. Super. Unpub. LEXIS 2749 (July 12, 2007).
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Violation of Protective Orders > General Overview

125. Defendant neighbor, who was engaged to plaintiff’s daughter and the father of plaintiff’s grandson, was sufficiently connected to plaintiff’s household to be subject to a restraining order under the Prevention of Domestic Violence Act of 1991, N.J. Stat. Ann. §§ 2C:25-17 to 2C:25-33. Defendant committed acts of “domestic violence” as defined in N.J. Stat. Ann. § 2C:25-19(a); defendant purposely struck plaintiff with a cane. which constituted assault under N.J. Stat. Ann. § 2C:12-1, and he also pushed her out of her home and locked the door, which constituted criminal restraint and/or harassment under N.J. Stat. Ann. § 2C:13-2 and N.J. Stat. Ann. § 2C:33-4. South v. North, 304 N.J. Super. 104, 698 A.2d 553, 1997 N.J. Super. LEXIS 372 (Ch.Div. 1997).
Criminal Law & Procedure > Criminal Offenses > Homicide > Involuntary Manslaughter > Elements

126. Because defendant’s defense theory was that he committed aggravated assault but did not cause the victim’s death, trial court’s instruction on simple manslaughter was not a constitutionally adequate substitute for the instruction on aggravated assault requested by defendant; although aggravated assault (N.J. Stat. Ann. § 2C:12-1(b)(1)), aggravated manslaughter (N.J. Stat. Ann. § 2C:11-4(a)), and simple manslaughter (N.J. Stat. Ann. § 2C:11-4(c)) had different levels of culpability, the factual question placed in issue by the defense was the causation of the victim’s death, not the defendant’s level of culpability, and the fact that the jury chose aggravated manslaughter rather than simple manslaughter did not necessarily mean that the jury was convinced beyond a reasonable doubt that defendant caused the victim’s death. Vujosevic v. Rafferty, 844 F.2d 1023, 1988 U.S. App. LEXIS 4955 (3d Cir. N.J. 1988).
Criminal Law & Procedure > Criminal Offenses > Homicide > Murder > General Overview

127. Defendant’s convictions for second degree aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b) were vacated because the convictions merged with defendant’s convictions for attempted murder of the same victims in violation of N.J. Stat. Ann. §§ 2C:5-1 and 2C:11-3. State v. Russo, 243 N.J. Super. 383, 579 A.2d 834, 1990 N.J. Super. LEXIS 342 (App.Div. 1990).
Criminal Law & Procedure > Criminal Offenses > Homicide > Voluntary Manslaughter > General Overview

128. In prosecution for aggravated manslaughter in violation of N.J. Stat. Ann. § 2C:11-4(a) and aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) where defendant was driving while intoxicated and was involved in an automobile accident resulting in the death of one person bodily injury to two others, trial judge did not err in rejecting the proffered defense of pathological intoxication under N.J. Stat. Ann. § 2C:2-8(d). State v. Gregg, 278 N.J. Super. 182, 650 A.2d 835, 1994 N.J. Super. LEXIS 509 (App.Div. 1994).
Criminal Law & Procedure > Criminal Offenses > Inchoate Crimes > Attempt > General Overview

129. There is no offense of attempted simple assault; under N.J. Stat. Ann. § 2C:12-1(a), the disorderly persons offense of simple assault is defined to include attempts to cause bodily injury and attempts to put another in fear of imminent serious bodily injury. State v. Clarke, 198 N.J. Super. 219, 486 A.2d 935, 1985 N.J. Super. LEXIS 1145 (App.Div. 1985).
Criminal Law & Procedure > Criminal Offenses > Inchoate Crimes > Conspiracy > General Overview

130. Trial court improperly denied defendant use of the entrapment defense, N.J. Stat. Ann. § 2C:2-12(a) where defendant had been indicted for conspiring to commit a second degree aggravated assault in violation of N.J. Stat. Ann. §§ 2C:12-1(b)(1) and § 2C:5-2 because defendant was charged with no substantive offense as defendant was not charged with an attempt to cause serious bodily injury or any other violation of the statute which proscribes second degree aggravated assault or with the commission of any other degree of assault; and as defendant was indicted only for a conspiracy, and causing or threatening a bodily injury was not an element of conspiracy. State v. Soltys, 270 N.J. Super. 182, 636 A.2d 1061, 1994 N.J. Super. LEXIS 21 (App.Div. 1994).
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Disruptive Conduct > General Overview

131. Violation of N.J. Stat. Ann. § 2C:12-1(a)(1), simple assault, is classified as a disorderly persons offense, punishable by a term of imprisonment that shall not exceed six months, under N.J. Stat. Ann. § 2C:43-8, and a fine not to exceed $ 1,000, under N.J. Stat. Ann. § 2C:43-3c. State v. Wahl, 365 N.J. Super. 356, 839 A.2d 120, 2004 N.J. Super. LEXIS 21 (App.Div. 2004).

132. Police officers had probable cause to arrest a man, who was later shot by an officer and died from the bullet wound, for both disorderly conduct and simple assault; by struggling with the officers, the man risked bodily injury not only to himself but also to the officers, and he did not have the right to resist the officers whether or not he perceived the arrest to be wrongful. Vak La v. Hayducka, 269 F. Supp. 2d 566, 2003 U.S. Dist. LEXIS 10907 (D.N.J. 2003), appeal dismissed by 122 Fed. Appx. 557, 2004 U.S. App. LEXIS 25063 (3d Cir. N.J. 2004).

133. District court improperly granted summary judgment to the police officer on the false arrest claim in the plaintiff’s 42 U.S.C.S. § 1983 action arising from an altercation between the plaintiff and the police officer inside the plaintiff’s home because the plaintiff could not have committed the offense of disorderly conduct in his own home and, therefore, the police could not have had probable cause to arrest the plaintiff on the charge of disorderly conduct; it was a jury question as to whether the police had probable cause to arrest the plaintiff on the aggravated assault charge. Groman v. Township of Manalapan, 47 F.3d 628, 1995 U.S. App. LEXIS 2929 (3d Cir. N.J. 1995).

134. Defendant charged under N.J. Stat. Ann. § 2C:12-1, a disorderly persons statute prohibiting simple assault, was not eligible for pretrial intervention because the offense was not indictable. State v. Di Cosmo, 188 N.J. Super. 298, 457 A.2d 88, 1982 N.J. Super. LEXIS 1014 (Law Div. 1982).
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Disruptive Conduct > Disorderly Conduct & Disturbing the Peace > General Overview

135. Disorderly conduct was a lesser included offense of atrocious assault and battery but not of making threats to kill and murder. Where defendants were convicted of disorderly conduct stemming from an altercation, double jeopardy barred a subsequent charge of atrocious assault and battery but did not bar the charge of making threats to kill and murder. State v. Berry, 41 N.J. 547, 197 A.2d 687, 1964 N.J. LEXIS 259 (1964).
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Disruptive Conduct > Disorderly Conduct & Disturbing the Peace > Elements

136. With regard to defendant’s convictions for first-degree kidnapping, second-degree robbery,and third-degree terroristic threats, following a jury trial with regard to actions involving his girlfriend and holding her captive in a locked room for over 13 hours, he was awarded a new trial as the brief trial in the case was poisoned by the recurring admission of evidence of other crimes and wrongdoings by him and by reference to the domestic violence restraining order against him. The trial judge’s curative instruction was insufficient as it did not identify what was “blurted out” or what information was “not part of the case,” thus, defendant was denied a fair trial. State v. Vallejo, 198 N.J. 122, 965 A.2d 1181, 2009 N.J. LEXIS 54 (2009).

137. With regard to defendant’s convictions for first-degree kidnapping, second-degree robbery, third-degree terroristic threats, and a disorderly persons offense of simple assault following a jury trial with regard to actions involving his girlfriend and holding her captive in a locked room for over 13 hours, he was awarded a new trial as the brief trial in the case was poisoned by the recurring admission of evidence of other crimes and wrongdoings by him and by reference to the domestic violence restraining order against him. The trial judge’s curative instruction was insufficient as it did not identify what was “blurted out” or what information was “not part of the case,” thus, defendant was denied a fair trial. State v. Vallejo, 198 N.J. 122, 965 A.2d 1181, 2009 N.J. LEXIS 54 (2009).
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Fleeing & Eluding > General Overview

138. Under N.J. Stat. Ann. § 2C:12-1(b)(6), the word “injury” means “bodily injury” as opposed to the mere risk of injury when used in the phrase “death or injury”; the lack of an instruction charging a jury with the “bodily injury” definition of N.J. Stat. Ann. § 2C:11-1(a) is reversible error because the injury is an element of the offense of eluding. State v. Dorko, 298 N.J. Super. 54, 688 A.2d 1109, 1997 N.J. Super. LEXIS 86 (App.Div. 1997).
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Lesser Included Offenses > General Overview

139. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the jury could have been permitted to consider, as a lesser-included offense, third-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(5); the jury could have concluded that defendant did not attempt to inflict serious injury upon the officer, but that he did commit a simple assault upon the officer that resulted in bodily injury. Although the third-degree offense applied specifically to police officers, whereas the second-degree offense did not, N.J. Stat. Ann. § 2C:1-8d(1) required that the lesser offense be established by proof of the same or less than all the “facts,” not “elements,” required to establish the commission of the offense charged. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

140. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the jury could have been permitted to consider, as a lesser-included offense, third-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(5); the jury could have concluded that defendant did not attempt to inflict serious injury upon the officer, but that he did commit a simple assault upon the officer that resulted in bodily injury. Where the evidence in the record shows that the victim of an assault under N.J. Stat. Ann. § 2C:12-1b(1) is a law enforcement officer who suffered bodily injury, assault under N.J. Stat. Ann. § 2C:12-1b(5)(a) resulting in bodily injury is a lesser-included offense under N.J. Stat. Ann. § 2C:1-8d(1), because the victim’s status is not an element of the second-degree offense. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Resisting Arrest > General Overview

141. Resisting arrest, in violation of N.J. Stat. Ann. § 2C:29-2, was not a lesser-included offense of aggravated assault, in violation of N.J. Stat. Ann. § 2C:12-1, and defendant could be convicted of both offenses without violating N.J. Stat. Ann. § 2C:1-8. State v. Battle, 256 N.J. Super. 268, 606 A.2d 1119, 1992 N.J. Super. LEXIS 180 (App.Div. 1992).

142. The contention of a defendant convicted of assaulting New York police officers in violation of former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), that the trial court erred in denying his motion for a directed verdict because the officers were not acting in the performance of their duties at the time of the assault, was without merit; although defendant’s arrest was illegal because the officers were not authorized to pursue defendant into New Jersey on an outstanding misdemeanor arrest warrant, defendant was not permitted to use force to resist an illegal arrest, particularly where one officer was acting in the performance of his duty while in uniform and the other officer, in civilian clothes, had exhibited his authority. State v. De Grote, 136 N.J. Super. 525, 347 A.2d 23, 1975 N.J. Super. LEXIS 656 (Law Div. 1975), affirmed by 153 N.J. Super. 479, 380 A.2d 290, 1977 N.J. Super. LEXIS 1137 (App.Div. 1977).
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Sexual Assault > General Overview

143. Where there was evidence that defendant repeatedly raped his adult victim with various implements and beat and tortured her with heated nails, there was sufficient proof to show that the victim sustained “severe personal injury” or “severe bodily injury” as defined in N.J. Stat. Ann. § 2C:12-1(b)(1); as such, defendant’s convictions for first degree sexual assault and aggravated assault were affirmed. State v. Day, 216 N.J. Super. 33, 522 A.2d 1019, 1987 N.J. Super. LEXIS 1069 (App.Div. 1987).

144. Where defendant untimely raised insanity as a defense, substantial discretion was to be conferred upon the trial judge to determine the appropriate sanction and remedy when criminal discovery rules had been violated; court found there was no abuse of discretion to refuse to allow defendant to use an untimely raised insanity defense and the court upheld defendant’s convictions of sexual assault, simple assault, and aggravated sexual assault under N.J. Stat. Ann. §§ 2C:14-2(c)(1), 2C:12-1(a)(1) and 2C:14-2(a)(2)(a), respectively. State v. Burnett, 198 N.J. Super. 53, 486 A.2d 846, 1984 N.J. Super. LEXIS 1265 (App.Div. 1984).

145. Consecutive sentences for assault to commit carnal abuse upon a female 14 years of age, former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1), and carnal abuse of another 14 year old female, former N.J. Stat. Ann. § 2A:138-1 in addition to armed robbery, were affirmed on appeal; the intent behind the crimes was different notwithstanding the fact the victim of both armed robbery and the sex offense was the same person. State v. Warfield, 166 N.J. Super. 129, 399 A.2d 303, 1979 N.J. Super. LEXIS 622 (App.Div. 1979).

146. Defendant’s conviction for assault with intent to commit sodomy, under former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1), was reversed; the trial court erred in precluding affirmative evidence or cross-examination on the alleged victim’s consensual participation. State v. Ciuffini, 164 N.J. Super. 145, 395 A.2d 904, 1978 N.J. Super. LEXIS 1172 (App.Div. 1978).

147. As defendant’s age and defendant’s specific intent were necessary elements of the crimes charged under former N.J. Rev. Stat. § 2:163-1 (now N.J. Stat. Ann. § 2C:14-2) and former N.J. Rev. Stat. § 2:110-2 (now N.J. Stat. Ann. § 2C:12-1), the indictments filed against defendant which failed to include such information were insufficient; therefore, defendant’s convictions for these crimes were reversed. State v. Lefante, 23 N.J. Super. 511, 93 A.2d 220, 1952 N.J. Super. LEXIS 675 (App.Div. 1952), reversed by 12 N.J. 505, 97 A.2d 472, 1953 N.J. LEXIS 271 (1953).
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > General Overview

148. Because assault by automobile under N.J. Stat. Ann. § 2C:12-1 is merely a fourth-degree crime if serious bodily injury results and a disorderly persons offense if there is only bodily injury, the crime is well outside the presumptive denial area of the Pretrial Intervention Program under the guidelines and under N.J. Stat. Ann. § 2C:43-12. State v. Caliguiri, 305 N.J. Super. 9, 701 A.2d 920, 1997 N.J. Super. LEXIS 393 (App.Div. 1997), remanded by 152 N.J. 186, 704 A.2d 16, 1997 N.J. LEXIS 1002 (1997).

149. Even ordinary negligence with a motor vehicle causing bodily injury could be disorderly conduct, pursuant to N.J. Stat. Ann. § 2C:12-1(a)(2). State v. Parker, 198 N.J. Super. 272, 486 A.2d 1275, 1984 N.J. Super. LEXIS 1287 (App.Div. 1984).
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview

150. In prosecution for aggravated manslaughter in violation of N.J. Stat. Ann. § 2C:11-4(a) and aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) where defendant was driving while intoxicated and was involved in an automobile accident resulting in the death of one person bodily injury to two others, trial judge did not err in rejecting the proffered defense of pathological intoxication under N.J. Stat. Ann. § 2C:2-8(d). State v. Gregg, 278 N.J. Super. 182, 650 A.2d 835, 1994 N.J. Super. LEXIS 509 (App.Div. 1994).

151. Rule barring extrapolation evidence of defendant’s blood alcohol concentration in per se violations of a driving under the influence statute, N.J. Stat. Ann. § 39:4-50(a), did not bar extrapolation evidence under aggravated assault and reckless driving statutes, N.J. Stat. Ann. §§ 2C:12-1(b) and 2C:12-1(c). State v. Oriole, 243 N.J. Super. 688, 581 A.2d 142, 1990 N.J. Super. LEXIS 361 (Law Div. 1990).
Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Reckless Driving > General Overview

152. Rule barring extrapolation evidence of defendant’s blood alcohol concentration in per se violations of a driving under the influence statute, N.J. Stat. Ann. § 39:4-50(a), did not bar extrapolation evidence under aggravated assault and reckless driving statutes, N.J. Stat. Ann. §§ 2C:12-1(b) and 2C:12-1(c). State v. Oriole, 243 N.J. Super. 688, 581 A.2d 142, 1990 N.J. Super. LEXIS 361 (Law Div. 1990).
Criminal Law & Procedure > Criminal Offenses > Weapons > Possession > General Overview

153. Defendant’s conviction of possessing a firearm with the purpose of using it unlawfully against defendant’s son was not sustainable where the unlawful purpose was the assault on defendant’s son with the firearm and defendant was acquitted of another count in the indictment charging aggravated assault upon the son with the firearm; the period of time defendant allegedly possessed the weapon was very short, and there was no evidence of a broader purpose than the purpose to use it against the son. State v. Whittaker, 326 N.J. Super. 252, 741 A.2d 114, 1999 N.J. Super. LEXIS 406 (App.Div. 1999).

154. At a jury trial on charges of aggravated assault, unlawful possession of a firearm, and possession of a weapon for an unlawful purpose, the State’s witnesses were properly allowed to testify that the defendant was known to carry a gun and had been seen carrying the gun in question on other occasions where the testimony was introduced to tie the gun which was found at the scene of the crime to defendant; further, the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice to the defendant because, in order to prove its case, the State needed to establish that the gun was in the possession of defendant on the date in question and, in an effort to do so, the State attempted to show that defendant in fact owned the gun and, in addition, the defense had the opportunity to cross-examine the witnesses and to provide its own witness who denied seeing defendant with the gun. State v. Carswell, 303 N.J. Super. 462, 697 A.2d 171, 1997 N.J. Super. LEXIS 342 (App.Div. 1997).

155. N.J. Stat. Ann. § 2C:12-1(b)(4) did not necessarily require that a gun be loaded when it was used to ascertain defendant’s guilt for pointing a firearm at another. State v. Bill, 194 N.J. Super. 192, 476 A.2d 813, 1984 N.J. Super. LEXIS 1101 (App.Div. 1984).

156. A trial court erred in sentencing a defendant who had been indicted for assault with intent to commit robbery in violation of former N.J. Rev. Stat. § 2:110-2 (now N.J. Stat. Ann. § 2C:12-1), and assault when armed with a revolver in violation of former N.J. Rev. Stat. § 2:176-5 (now N.J. Stat. Ann. § 2C:15-1), because by convicting defendant of assault with an intent to rob the jury impliedly acquitted him of the greater charge of assault with a revolver with an intent to rob. State v. Burns, 4 N.J. Super. 34, 66 A.2d 439, 1949 N.J. Super. LEXIS 737 (App.Div. 1949).
Criminal Law & Procedure > Criminal Offenses > Weapons > Possession > Elements

157. Simple assault under N.J. Stat. Ann. § 2C:12-1(a)(3), which consists of an “attempt by physical menace to put another in fear of imminent serious bodily injury,” cannot be a “misdemeanor crime of domestic violence” within the intent of the Lautenberg Amendment, under which a convicted person is prohibited from possessing a firearm, because this type of simple assault does not have, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon. Frazier v. Northern State Prison, Dept. of Corrections, 392 N.J. Super. 514, 921 A.2d 479, 2007 N.J. Super. LEXIS 136 (App.Div. 2007).

158. Corrections officer was improperly terminated on grounds that his simple assault conviction, pursuant to N.J. Stat. Ann. § 2C:12-1(a)(3), was a “misdemeanor crime of domestic violence” under the Laughtenberg Amendment that barred him from possessing a gun, as simple assault does not have as an element the use or attempted use of physical force, or the threatened use of deadly weapon. Frazier v. Northern State Prison, Dept. of Corrections, 392 N.J. Super. 514, 921 A.2d 479, 2007 N.J. Super. LEXIS 136 (App.Div. 2007).
Criminal Law & Procedure > Criminal Offenses > Weapons > Use > General Overview

159. In the context of a charge of assault by pointing a firearm, in violation of N.J. Stat. Ann. § 2C:12-1(b)(4), both loaded and unloaded firearms are considered when ascertaining guilt. State v. Jules, 345 N.J. Super. 185, 784 A.2d 722, 2001 N.J. Super. LEXIS 409 (App.Div. 2001).

160. N.J. Stat. Ann. § 2C:11-1(c) sets forth an objective definition of deadly weapon as one that is ordinarily capable of causing a grievous or fatal injury. State v. Jules, 345 N.J. Super. 185, 784 A.2d 722, 2001 N.J. Super. LEXIS 409 (App.Div. 2001).
Criminal Law & Procedure > Accessories > General Overview

161. Defendant’s convictions for second and third degree assault pursuant to N.J. Stat. Ann. § 2C:12-1(b)(1) were reversed because the jury was charged that purposeful or knowing were the required culpable mental states under N.J. Stat. Ann. § 2C:12-1(b)(2), and was charged on fourth degree aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(3), but the jury was not charged that recklessness was one of the culpable mental states of that offense under N.J. Stat. Ann. § 2C:12-1(b)(1), and that accomplice liability did not apply if defendant’s state of mind was merely reckless. State v. Jackmon, 305 N.J. Super. 274, 702 A.2d 489, 1997 N.J. Super. LEXIS 429 (App.Div. 1997).
Criminal Law & Procedure > Juvenile Offenders > Juvenile Proceedings > General Overview

162. Trial court did not misapply its discretion in directing that a juvenile be transferred to an adult facility pending resolution of the charges of second-degree aggravated assault, in violation of N.J. Stat. Ann. § 2C:12-1(b), and third-degree endangering the welfare of a child under the age of 16, contrary to N.J. Stat. Ann. § 2C:24-4. The trial court’s opinion reflected application of the “best interests” standard in conjunction with the following relevant factors: the juvenile was charged with committing a Chart 1 offense at age 16; his prior offense history was significant and indicative of a lack of control; the programs at each of the detention facilities were comparable; and the safety concerns were unfounded in light of the uncontroverted evidence that juveniles housed in the adult facility were sight-and-sound segregated from the adult population into a small control group of 20 or less inmates. State In re W.M., 364 N.J. Super. 155, 834 A.2d 1053, 2003 N.J. Super. LEXIS 343 (App.Div. 2003).
Criminal Law & Procedure > Juvenile Offenders > Sentencing > Confinement Practices

163. There was no abuse of discretion and nothing shocking to a court’s conscience in a family court judge’s determination that a juvenile awaiting trial as an adult on charges including aggravated assault that resulted in a young child’s death should be detained in a young offenders’ area of an adult facility; this standard of review accorded with the standard applied to review of the waiver decision itself, and took into account the nature of the offense alleged, which was a very serious one. State In re W.M., 364 N.J. Super. 155, 834 A.2d 1053, 2003 N.J. Super. LEXIS 343 (App.Div. 2003).

164. Trial court did not misapply its discretion in directing that a juvenile be transferred to an adult facility pending resolution of the charges of second-degree aggravated assault, in violation of N.J. Stat. Ann. § 2C:12-1(b), and third-degree endangering the welfare of a child under the age of 16, contrary to N.J. Stat. Ann. § 2C:24-4. The trial court’s opinion reflected application of the “best interests” standard in conjunction with the following relevant factors: the juvenile was charged with committing a Chart 1 offense at age 16; his prior offense history was significant and indicative of a lack of control; the programs at each of the detention facilities were comparable; and the safety concerns were unfounded in light of the uncontroverted evidence that juveniles housed in the adult facility were sight-and-sound segregated from the adult population into a small control group of 20 or less inmates. State In re W.M., 364 N.J. Super. 155, 834 A.2d 1053, 2003 N.J. Super. LEXIS 343 (App.Div. 2003).
Criminal Law & Procedure > Juvenile Offenders > Trial as Adult > General Overview

165. There was no abuse of discretion and nothing shocking to a court’s conscience in a family court judge’s determination that a juvenile awaiting trial as an adult on charges including aggravated assault that resulted in a young child’s death should be detained in a young offenders’ area of an adult facility; this standard of review accorded with the standard applied to review of the waiver decision itself, and took into account the nature of the offense alleged, which was a very serious one. State In re W.M., 364 N.J. Super. 155, 834 A.2d 1053, 2003 N.J. Super. LEXIS 343 (App.Div. 2003).
Criminal Law & Procedure > Search & Seizure > Exclusionary Rule > Exceptions > Exigent Circumstances

166. The contention of a defendant convicted of assaulting New York police officers in violation of former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), that the trial court erred in denying his motion for a directed verdict because the officers were not acting in the performance of their duties at the time of the assault, was without merit; although defendant’s arrest was illegal because the officers were not authorized to pursue defendant into New Jersey on an outstanding misdemeanor arrest warrant, defendant was not permitted to use force to resist an illegal arrest, particularly where one officer was acting in the performance of his duty while in uniform and the other officer, in civilian clothes, had exhibited his authority. State v. De Grote, 136 N.J. Super. 525, 347 A.2d 23, 1975 N.J. Super. LEXIS 656 (Law Div. 1975), affirmed by 153 N.J. Super. 479, 380 A.2d 290, 1977 N.J. Super. LEXIS 1137 (App.Div. 1977).
Criminal Law & Procedure > Interrogation > Miranda Rights > Custodial Interrogation

167. Defendant’s assault conviction was reversed because the trial court erred in allowing the state to show on cross-examination and argue during closing that defendant failed to make an exculpatory statement to the police; however, defendant’s firearm conviction under former N.J. Stat. Ann. § 2A:151-41(a) (now N.J. Stat. Ann. § 2C:39-3) was upheld. State v. Morales, 127 N.J. Super. 1, 316 A.2d 32, 1974 N.J. Super. LEXIS 700 (App.Div. 1974).
Criminal Law & Procedure > Accusatory Instruments > Complaints > General Overview

168. Trial court had authority under N.J. Stat. Ann. § 2C:12-1 to amend the criminal complaint against defendant from assault to harassment, after the close of the evidence, because the amended charge was a lesser included offense of the original charge. State v. Berka, 211 N.J. Super. 717, 512 A.2d 592, 1986 N.J. Super. LEXIS 1325 (Law Div. 1986).
Criminal Law & Procedure > Accusatory Instruments > Duplicity > General Overview

169. Indictment did not improperly fractionalize a single offense where different victims were involved and there were as many offenses as there were individuals affected; state could prosecute each alleged offense in a separate count of a multi-count indictment so long as the charges were joined in the same indictment and defendant was not subjected to multiple trials on charges arising out of the same incident. State v. Clark, 227 N.J. Super. 204, 545 A.2d 1366, 1988 N.J. Super. LEXIS 308 (App.Div. 1988).
Criminal Law & Procedure > Accusatory Instruments > Indictments > General Overview

170. Where defendant was indicted for the commission of a homicide by means of a violent physical attack, the murder charge under N.J. Stat. Ann. § 2A:113-2 (now N.J. Stat. Ann. § 2C:11-3) also included the elements of atrocious assault and battery under N.J. Stat. Ann. § 2A:90-1(now N.J. Stat. Ann. § 2C:12-1), and defendant was fully aware that he was accused of participating in a brutal physical attack. State v. Zelichowski, 52 N.J. 377, 245 A.2d 351, 1968 N.J. LEXIS 248 (1968).
Criminal Law & Procedure > Accusatory Instruments > Merger of Offenses > General Overview

171. Where defendant was indicted for the commission of a homicide by means of a violent physical attack, the murder charge under N.J. Stat. Ann. § 2A:113-2 (now N.J. Stat. Ann. § 2C:11-3) also included the elements of atrocious assault and battery under N.J. Stat. Ann. § 2A:90-1(now N.J. Stat. Ann. § 2C:12-1), and defendant was fully aware that he was accused of participating in a brutal physical attack. State v. Zelichowski, 52 N.J. 377, 245 A.2d 351, 1968 N.J. LEXIS 248 (1968).
Criminal Law & Procedure > Discovery & Inspection > Discovery by Government > General Overview

172. Petitioner, charged with kidnapping and related offenses, former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 12C:12-1), and former 2A:118-1 (now N.J. Stat. Ann. § 2C:13-1), was entitled to habeas corpus relief because the trial court violated the petitioner’s sixth amendment rights by refusing to allow two alibi witnesses to testify, based on the petitioner’s attorney’s highly technical failure to comply with all the notice provisions when the state was not prejudiced by the error. Hackett v. Mulcahy, 493 F. Supp. 1329, 1980 U.S. Dist. LEXIS 12583 (D.N.J. 1980).
Criminal Law & Procedure > Discovery & Inspection > Discovery Misconduct > General Overview

173. Where defendant untimely raised insanity as a defense, substantial discretion was to be conferred upon the trial judge to determine the appropriate sanction and remedy when criminal discovery rules had been violated; court found there was no abuse of discretion to refuse to allow defendant to use an untimely raised insanity defense and the court upheld defendant’s convictions of sexual assault, simple assault, and aggravated sexual assault under N.J. Stat. Ann. §§ 2C:14-2(c)(1), 2C:12-1(a)(1) and 2C:14-2(a)(2)(a), respectively. State v. Burnett, 198 N.J. Super. 53, 486 A.2d 846, 1984 N.J. Super. LEXIS 1265 (App.Div. 1984).
Criminal Law & Procedure > Bail > Hearings

174. Order holding defendant to bail on mayhem charge was quashed because victim’s affidavit, stating that defendant struck him and broke his false plate, failed to allege facts showing defendant acted without provocation and with malice, and failed to allege sufficient facts to meet the definition of mayhem under former N.J. Stat. Ann. § 2:151-1 (now N.J. Stat. Ann. § 2C:12-1). Clyde v. Parillo, 25 N.J. Misc. 492, 55 A.2d 810, 1947 N.J. LEXIS 540 (N.J. 1947).
Criminal Law & Procedure > Pretrial Motions & Procedures

175. Judge’s decision to grant the prosecution’s motion to downgrade high misdemeanors of assault and battery upon two police officers and assault and battery upon an infant to disorderly person offenses was within the court’s discretion and did not deprive the defendant of equal protection of the law. State v. Owens, 102 N.J. Super. 187, 245 A.2d 736, 1968 N.J. Super. LEXIS 473 (App.Div. 1968), modified by 54 N.J. 153, 254 A.2d 97, 1969 N.J. LEXIS 188 (1969).
Criminal Law & Procedure > Pretrial Motions & Procedures > Dismissal

176. Prosecution for simple assault under N.J. Stat. Ann. § 2C:12-1(a)(1) was properly dismissed under N.J. Stat. Ann. § 2C:2-11(b) because all the attendant circumstances established that the defendant political candidate’s conduct, striking an opponent while waving a derogatory political flier at the opponent, was a de minimus infraction which was a trivial matter or did not cause or threaten the result which the criminal statute was designed to prevent. State v. Cabana, 315 N.J. Super. 84, 716 A.2d 576, 1997 N.J. Super. LEXIS 564 (Law Div. 1997), affirmed by 318 N.J. Super. 259, 723 A.2d 635, 1999 N.J. Super. LEXIS 38 (App.Div. 1999).

177. Talk show host who knowingly hit a guest on his show committed simple assault, a de minimis infraction under N.J. Stat. Ann. § 2C:12-1, was denied a motion for dismissal where the court agreed with the prosecution that dismissal would have sent the wrong signal. State v. Downey, 242 N.J. Super. 367, 576 A.2d 945, 1988 N.J. Super. LEXIS 538 (Law Div. 1988).
Criminal Law & Procedure > Pretrial Motions & Procedures > Joinder & Severance > Severance of Offenses

178. In a prosecution for aggravated assault, weapons offenses, and contempt for violation of a domestic violence restraining order, the trial court erred in failing to sever the contempt charge and in admitting the restraining order as evidence of other crimes. As defendant’s state of mind was at issue as to the assault and weapons charges, the error was reversible. State v. Lewis, 389 N.J. Super. 409, 913 A.2d 157, 2007 N.J. Super. LEXIS 6 (App.Div. 2007).
Criminal Law & Procedure > Double Jeopardy > General Overview

179. Disorderly conduct was a lesser included offense of atrocious assault and battery but not of making threats to kill and murder. Where defendants were convicted of disorderly conduct stemming from an altercation, double jeopardy barred a subsequent charge of atrocious assault and battery but did not bar the charge of making threats to kill and murder. State v. Berry, 41 N.J. 547, 197 A.2d 687, 1964 N.J. LEXIS 259 (1964).
Criminal Law & Procedure > Double Jeopardy > Attachment Jeopardy

180. Double jeopardy was not a bar to defendant’s third trial for aggravated assault since he had not raised the issue at his second trial and the jury deliberations in first trial were out-of-the-ordinary. State v. Jenkins, 349 N.J. Super. 464, 793 A.2d 861, 2002 N.J. Super. LEXIS 166 (App.Div. 2002).

181. Where defendant who attempted to run down three police officers with his car was convicted of atrocious assault and battery in violation of former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1) and former N.J. Stat. Ann. § 2A:85-5 (now N.J. Stat. Ann. § 2C:44-3) after having been convicted of reckless driving and leaving the scene of an accident in violation of N.J. Stat. Ann. §§ 39:4-96 and 39:4-129, the second prosecution arising from the single incident did not violate the prohibition against double jeopardy. State v. Currie, 41 N.J. 531, 197 A.2d 678, 1964 N.J. LEXIS 258 (1964).
Criminal Law & Procedure > Guilty Pleas > Allocution & Colloquy

182. Guilty plea to a fourth degree aggravated assault, in violation of N.J. Stat. Ann. § 2C:12-1(b), should not have been accepted where defendant only agreed that he had a gun and “would say” that he pointed it at the victims, but he could not recall any details about the gun or who else in the group had guns. State v. Henries, 306 N.J. Super. 512, 704 A.2d 24, 1997 N.J. Super. LEXIS 503 (App.Div. 1997).
Criminal Law & Procedure > Counsel > Effective Assistance > Sentencing

183. Since the inmate did not have a right to counsel when he pled guilty to simple assault in 1991, which was a disorderly persons offense under N.J. Stat. Ann. § 2C:12-1, because he was not sentenced to any jail time, his counsel in his 1998 cocaine case was not ineffective for failing to challenge the use of the 1991 simple assault charge to enhance his sentence. United States v. Jones, 418 F.3d 368, 2005 U.S. App. LEXIS 16806 (3d Cir. Pa. 2005), writ of certiorari denied by 547 U.S. 1108, 126 S. Ct. 1898, 164 L. Ed. 2d 584, 2006 U.S. LEXIS 3415, 74 U.S.L.W. 3599 (2006).
Criminal Law & Procedure > Trials > Closing Arguments > Defendant’s Failure to Testify

184. Convictions for first degree robbery and second degree aggravated assault of the robbery victim were reversed where the prosecutor used his summation to cast aspersions on defendant’s failure to testify, blame defendant’s attorney for the length of the trial, accuse defendant’s counsel of concealing defendant’s guilt through deception, criticize defendant’s counsel for representing a client he knew was guilty, and improperly suggesting that defendant’s lack of funds was a motive for the crime. State v. Sherman, 230 N.J. Super. 10, 552 A.2d 621, 1988 N.J. Super. LEXIS 476 (App.Div. 1988).
Criminal Law & Procedure > Trials > Closing Arguments > Inflammatory Statements

185. Convictions for first degree robbery and second degree aggravated assault of the robbery victim were reversed where the prosecutor used his summation to cast aspersions on defendant’s failure to testify, blame defendant’s attorney for the length of the trial, accuse defendant’s counsel of concealing defendant’s guilt through deception, criticize defendant’s counsel for representing a client he knew was guilty, and improperly suggesting that defendant’s lack of funds was a motive for the crime. State v. Sherman, 230 N.J. Super. 10, 552 A.2d 621, 1988 N.J. Super. LEXIS 476 (App.Div. 1988).
Criminal Law & Procedure > Trials > Defendant’s Rights > Right to Due Process

186. Petitioner, charged with kidnapping and related offenses, former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 12C:12-1), and former 2A:118-1 (now N.J. Stat. Ann. § 2C:13-1), was entitled to habeas corpus relief because the trial court violated the petitioner’s sixth amendment rights by refusing to allow two alibi witnesses to testify, based on the petitioner’s attorney’s highly technical failure to comply with all the notice provisions when the state was not prejudiced by the error. Hackett v. Mulcahy, 493 F. Supp. 1329, 1980 U.S. Dist. LEXIS 12583 (D.N.J. 1980).
Criminal Law & Procedure > Trials > Defendant’s Rights > Right to Fair Trial

187. Where defendant and his accomplices robbed various people at a theater and where defendant shot a victim who tried to seize his gun, defendant’s convictions of, inter alia, atrocious assault and battery in violation of former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1), and assault with an offensive weapon in violation of former N.J. Stat. Ann. § 21:90-3 (now N.J. Stat. Ann. § 2C:12-1), could not stand because he was deprived of a fair trial where the prosecutor’s questioning included an inescapable implication that a police officer had received defendant’s name from an informer and the prosecutor in summation again referred to the unknown informant; testimony regarding an informant’s statement was inadmissible hearsay, and it was improper to ask the jury to consider information outside of the evidence. State v. Thomas, 168 N.J. Super. 10, 401 A.2d 693, 1979 N.J. Super. LEXIS 758 (App.Div. 1979).
Criminal Law & Procedure > Trials > Defendant’s Rights > Right to Jury Trial > Misdemeanors

188. Defendant’s convictions for two violations of the Disorderly Persons Act, former N.J. Stat. Ann. §§ 2A:170-3 and 2A:170-26, had to be reversed and remanded because a magistrate was without jurisdiction to try defendant for assaulting a police officer because such an offense constituted a high misdemeanor; defendant should have been prosecuted under former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1). State v. States, 84 N.J. Super. 404, 202 A.2d 225, 1964 N.J. Super. LEXIS 555 (Cty. Ct. 1964), reversed by 44 N.J. 285, 208 A.2d 633, 1965 N.J. LEXIS 226 (1965).
Criminal Law & Procedure > Trials > Defendant’s Rights > Right to Jury Trial > Petty Offenses

189. Although a charge of assault and battery is a disorderly persons offense and is a petty offense rather than a crime and although a defendant is not entitled to a jury trial for a petty offense, if several petty offenses arise out of a single event, a jury trial should be offered to defendant if the imposed punishment could exceed the maximum authorized for a single petty offense. State v. Owens, 54 N.J. 153, 254 A.2d 97, 1969 N.J. LEXIS 188 (1969), writ of certiorari denied by 396 U.S. 1021, 90 S. Ct. 593, 24 L. Ed. 2d 514, 1970 U.S. LEXIS 3396 (1970).
Criminal Law & Procedure > Trials > Defendant’s Rights > Right to Remain Silent > Prosecutor’s Comments on Defendant’s Silence

190. Defendant’s assault conviction was reversed because the trial court erred in allowing the state to show on cross-examination and argue during closing that defendant failed to make an exculpatory statement to the police; however, defendant’s firearm conviction under former N.J. Stat. Ann. § 2A:151-41(a) (now N.J. Stat. Ann. § 2C:39-3) was upheld. State v. Morales, 127 N.J. Super. 1, 316 A.2d 32, 1974 N.J. Super. LEXIS 700 (App.Div. 1974).
Criminal Law & Procedure > Witnesses > Sequestration

191. No violation of an order of sequestration or defendant’s constitutional rights occurred when the victim remained in the courtroom after testifying, overheard defendant speak, and was recalled to make a vocal identification of defendant during his trial on assault and robbery charges as there was no intent to recall the victim when he was allowed to remain in the courtroom; no objection was made when the victim requested to remain therein; and, defendant had no constitutional right to exclude the victim from the courtroom while the victim had a constitutional right to remain after concluding his testimony. State v. Williams, 404 N.J. Super. 147, 960 A.2d 805, 2008 N.J. Super. LEXIS 261 (App.Div. 2008).
Criminal Law & Procedure > Defenses > General Overview

192. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the trial court did not commit plain error in failing to sua sponte provide an instruction on the use of force in defense of others; the record was devoid of a rational basis upon which the jury could have found that defendant acted in defense of another inmate. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).
Criminal Law & Procedure > Defenses > Entrapment

193. Trial court improperly denied defendant use of the entrapment defense, N.J. Stat. Ann. § 2C:2-12(a), where defendant had been indicted for conspiring to commit a second degree aggravated assault in violation of N.J. Stat. Ann. §§ 2C:12-1(b)(1) and 2C:5-2, because defendant was charged with no substantive offense, as defendant was not charged with an attempt to cause serious bodily injury or any other violation of the statute which proscribes second degree aggravated assault or with the commission of any other degree of assault, and as defendant was indicted only for a conspiracy, and causing or threatening a bodily injury was not an element of conspiracy. State v. Soltys, 270 N.J. Super. 182, 636 A.2d 1061, 1994 N.J. Super. LEXIS 21 (App.Div. 1994).
Criminal Law & Procedure > Defenses > Immunity & Public Authority

194. The contention of a defendant convicted of assaulting New York police officers in violation of former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), that the trial court erred in denying his motion for a directed verdict because the officers were not acting in the performance of their duties at the time of the assault, was without merit; although defendant’s arrest was illegal because the officers were not authorized to pursue defendant into New Jersey on an outstanding misdemeanor arrest warrant, defendant was not permitted to use force to resist an illegal arrest, particularly where one officer was acting in the performance of his duty while in uniform and the other officer, in civilian clothes, had exhibited his authority. State v. De Grote, 136 N.J. Super. 525, 347 A.2d 23, 1975 N.J. Super. LEXIS 656 (Law Div. 1975), affirmed by 153 N.J. Super. 479, 380 A.2d 290, 1977 N.J. Super. LEXIS 1137 (App.Div. 1977).
Criminal Law & Procedure > Defenses > Impossibility

195. Court granted defendant’s motion to have an aggravated assault charge downgraded to simple assault because defendant could not be convicted of aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(4) where his action of pointing an unloaded and inoperable gun at a victim did not exhibit an extreme indifference to the value of human life; the standard was not a subjective one of the victim’s belief. State v. Diaz, 190 N.J. Super. 639, 464 A.2d 1216, 1983 N.J. Super. LEXIS 932 (Law Div. 1983), overruled by State v. Bill, 194 N.J. Super. 192, 476 A.2d 813, 1984 N.J. Super. LEXIS 1101 (App.Div. 1984).
Criminal Law & Procedure > Defenses > Insanity > Insanity Defense

196. Where defendant untimely raised insanity as a defense, substantial discretion was to be conferred upon the trial judge to determine the appropriate sanction and remedy when criminal discovery rules had been violated; court found there was no abuse of discretion to refuse to allow defendant to use an untimely raised insanity defense and the court upheld defendant’s convictions of sexual assault, simple assault, and aggravated sexual assault under N.J. Stat. Ann. §§ 2C:14-2(c)(1), 2C:12-1(a)(1) and 2C:14-2(a)(2)(a), respectively. State v. Burnett, 198 N.J. Super. 53, 486 A.2d 846, 1984 N.J. Super. LEXIS 1265 (App.Div. 1984).
Criminal Law & Procedure > Defenses > Intoxication

197. Where defendant was charged with violating a domestic violence restraining order in addition to aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1 and unlawful possession of a weapon in violation of N.J. Stat. Ann. §§ 2C:39-4 and 2C:39-5, trial counsel was not ineffective for failing to present the defense of intoxication permitted under N.J. Stat. Ann. § 2C:2-8(a); trial counsel discussed with defendant the defense of intoxication, but defendant was consistent in saying that he was the one attacked and was the victim and, as a result, a self-defense theory was pursued over an intoxication defense. State v. Keys, 331 N.J. Super. 480, 752 A.2d 368, 1998 N.J. Super. LEXIS 581 (Law Div. 1998), affirmed by 331 N.J. Super. 429, 752 A.2d 340, 2000 N.J. Super. LEXIS 221 (App.Div. 2000).

198. In prosecution for aggravated manslaughter in violation of N.J. Stat. Ann. § 2C:11-4(a) and aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) where defendant was driving while intoxicated and was involved in an automobile accident resulting in the death of one person bodily injury to two others, trial judge did not err in rejecting the proffered defense of pathological intoxication under N.J. Stat. Ann. § 2C:2-8(d). State v. Gregg, 278 N.J. Super. 182, 650 A.2d 835, 1994 N.J. Super. LEXIS 509 (App.Div. 1994).

199. Defendant’s convictions for assault with intent to rob under former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1) and assault while armed with a dangerous knife under former N.J. Stat. Ann. § 2A:151-5 were properly reversed; the trial court in-chambers ruling that it intended to charge the jury that voluntary intoxication was not a defense to any act by defendant was premature and therefore constituted error; the effect of the ruling was to preclude defendant from taking the stand in his own defense and testifying that he did not remember committing the offenses. State v. Stasio, 78 N.J. 467, 396 A.2d 1129, 1979 N.J. LEXIS 1170 (1979).
Criminal Law & Procedure > Defenses > Justification

200. Person who kills in the honest and reasonable belief that the protection of his own life requires the use of deadly force does not kill recklessly, therefore, the State’s failure to prove beyond a reasonable doubt that defendant did not act in self-defense in repelling his attacker entitles defendant to an exoneration of criminal liability on murder, aggravated manslaughter, and manslaughter charges. State v. Rodriguez, 195 N.J. 165, 949 A.2d 197, 2008 N.J. LEXIS 566 (2008).
Criminal Law & Procedure > Defenses > Self-Defense

201. Person who kills in the honest and reasonable belief that the protection of his own life requires the use of deadly force does not kill recklessly, therefore, the State’s failure to prove beyond a reasonable doubt that defendant did not act in self-defense in repelling his attacker entitles defendant to an exoneration of criminal liability on murder, aggravated manslaughter, and manslaughter charges. State v. Rodriguez, 195 N.J. 165, 949 A.2d 197, 2008 N.J. LEXIS 566 (2008).

202. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the trial court did not commit plain error in failing to sua sponte provide a self-defense instruction; the evidence did not support defendant’s claim that he was in danger of being harmed by the officer. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

203. In defendant’s trial on a charge of assault and battery upon a law enforcement officer in violation of former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), there was no evidence remotely suggesting that force was ever directed at defendant or that force was unnecessarily applied in any way to effectuate his detention where defendant was approached by two police officers after they had boxed in his vehicle with theirs, both police officers displayed their identifications to defendant and told him that they had a search warrant for the car and for defendant’s person, defendant attempted to move his car after being ordered to shut off the ignition and get out of the vehicle, and one of the officers lunged in and turned off the ignition. State v. Moriarty, 133 N.J. Super. 563, 338 A.2d 14, 1975 N.J. Super. LEXIS 853 (App.Div. 1975).
Criminal Law & Procedure > Scienter > Actus Reus

204. Under N.J. Stat. Ann. § 2C:12-1(b)(4), the trial court committed reversible error when it did not inform the jury that it could convict defendant of aggravated assault only if it found that defendant was aware that it was practically certain that when he pointed the gun, he was pointing it at or in the direction of persons other than his victim. State v. Clausell, 121 N.J. 298, 580 A.2d 221, 1990 N.J. LEXIS 149 (1990).
Criminal Law & Procedure > Scienter > Recklessness

205. Because “reckless” conduct constituted a lesser kind of culpability than “knowing” conduct as set forth at N.J. Stat. Ann. § 2C:1-8(e), and proof of the least required culpability element is sufficient when alternative kinds are proscribed for the same offense or degree of offense, the trial court properly charged both elements, as alternative types of culpability, in regard to the charge against defendant of aggravated assault on a police officer in violation of N.J. Stat. Ann. § 2C:12-1(b)(5)(a), notwithstanding the fact that the charging instrument only alleged a “knowing” act by defendant, particularly in light of the fact that the “defense” of intoxication and justification of self-defense were advanced. State v. Murphy, 185 N.J. Super. 72, 447 A.2d 219, 1982 N.J. Super. LEXIS 825 (Law Div. 1982).
Criminal Law & Procedure > Scienter > Specific Intent

206. Where defendant was charged with violating a domestic violence restraining order in addition to aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1 and unlawful possession of a weapon in violation of N.J. Stat. Ann. §§ 2C:39-4 and 2C:39-5, trial counsel was not ineffective for failing to present the defense of intoxication permitted under N.J. Stat. Ann. § 2C:2-8(a); trial counsel discussed with defendant the defense of intoxication, but defendant was consistent in saying that he was the one attacked and was the victim and, as a result, a self-defense theory was pursued over an intoxication defense. State v. Keys, 331 N.J. Super. 480, 752 A.2d 368, 1998 N.J. Super. LEXIS 581 (Law Div. 1998), affirmed by 331 N.J. Super. 429, 752 A.2d 340, 2000 N.J. Super. LEXIS 221 (App.Div. 2000).

207. There was sufficient evidence of intent to assault and rob to support convictions under former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1) and former N.J. Stat. Ann. § 2A:141-1, because defendant’s intent could readily be inferred by his actions of threatening to strike the victim with a hammer, then asking for and receiving money. State v. Hundley, 134 N.J. Super. 228, 339 A.2d 220, 1975 N.J. Super. LEXIS 748 (App.Div. 1975).
Criminal Law & Procedure > Jury Instructions > Objections

208. Former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1) entailed an intent to kill or take the life of the victim; because intent was the only real issue, it was necessary that the jury be charged correctly. State v. Natale, 138 N.J. Super. 241, 350 A.2d 501, 1975 N.J. Super. LEXIS 513 (App.Div. 1975).
Criminal Law & Procedure > Jury Instructions > Particular Instructions > Elements of the Offense

209. Under N.J. Stat. Ann. § 2C:12-1(b)(6), the word “injury” means “bodily injury” as opposed to the mere risk of injury when used in the phrase “death or injury”; the lack of an instruction charging a jury with the “bodily injury” definition of N.J. Stat. Ann. § 2C:11-1(a) is reversible error because the injury is an element of the offense of eluding. State v. Dorko, 298 N.J. Super. 54, 688 A.2d 1109, 1997 N.J. Super. LEXIS 86 (App.Div. 1997).

210. In defendant’s trial on a charge of assault and battery upon a law enforcement officer in violation of former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), a charge that defendant’s unlawful intent was implicit in the wrongful act, involving, as it did, resisting arrest, was not erroneous. State v. Moriarty, 133 N.J. Super. 563, 338 A.2d 14, 1975 N.J. Super. LEXIS 853 (App.Div. 1975).
Criminal Law & Procedure > Jury Instructions > Particular Instructions > Lesser Included Offenses

211. Defendant’s robbery conviction under N.J. Stat. Ann. § 2C:15-1 was reversed because the jury should have been allowed, pursuant to N.J. Stat. Ann. § 2C:1-8(d), to consider whether defendant was guilty of the lesser-included offense of simple assault under N.J. Stat. Ann. § 2C:12-1, rather than robbery, because the evidence allowed a rational juror to find that defendant had no part in taking the victim’s property, but, rather, was angry with the victim, causing defendant to place the victim in fear of serious bodily injury. N.J. v. Pedro Covil, 2007 N.J. Super. Unpub. LEXIS 2749 (July 12, 2007).

212. When a defendant charged with robbery, under N.J. Stat. Ann. § 2C:15-1, requested submission of the less serious offense of simple assault, under N.J. Stat. Ann. § 2C:12-1, the difference in the two crimes’ elements did not change the standard for evaluating the adequacy of the evidence required to submit a lesser-included offense charge to a jury. N.J. v. Pedro Covil, 2007 N.J. Super. Unpub. LEXIS 2749 (July 12, 2007).

213. Where the evidence in the record shows that the victim of an assault under N.J. Stat. Ann. § 2C:12-1(b)(1) is a law enforcement officer who suffered bodily injury, an assault under N.J. Stat. Ann. § 2C:12-1(b)(5)(a) resulting in bodily injury is a lesser included offense under N.J. Stat. Ann. § 2C:1-8(d)(1). State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

214. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the jury could have been permitted to consider, as a lesser-included offense, third-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(5); the jury could have concluded that defendant did not attempt to inflict serious injury upon the officer, but that he did commit a simple assault upon the officer that resulted in bodily injury. Although the third-degree offense applied specifically to police officers, whereas the second-degree offense did not, N.J. Stat. Ann. § 2C:1-8d(1) required that the lesser offense be established by proof of the same or less than all the “facts,” not “elements,” required to establish the commission of the offense charged. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

215. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the jury could have been permitted to consider, as a lesser-included offense, third-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(5); the jury could have concluded that defendant did not attempt to inflict serious injury upon the officer, but that he did commit a simple assault upon the officer that resulted in bodily injury. Where the evidence in the record shows that the victim of an assault under N.J. Stat. Ann. § 2C:12-1b(1) is a law enforcement officer who suffered bodily injury, assault under N.J. Stat. Ann. § 2C:12-1b(5)(a) resulting in bodily injury is a lesser-included offense under N.J. Stat. Ann. § 2C:1-8d(1), because the victim’s status is not an element of the second-degree offense. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

216. Where defendant was convicted of fourth-degree aggravated assault, which merged with his conviction for second-degree aggravated assault, he was not entitled to reversal of his convictions on the ground that the trial court failed to sua sponte instruct the jury on third-degree assault as a lesser-included offense; although defendant was entitled to the instruction on third-degree assault, he did not request the instruction, and a specific jury finding that the officer suffered bodily injury would have elevated his conviction from a fourth-degree offense to a third-degree offense. Moreover, the jury was not forced to choose between acquitting defendant or finding him guilty of second-degree assault because it was also instructed on fourth-degree aggravated assault, and defendant may have strategically elected not to have the third-degree offense charged because of the differences in prison terms that are provided for under N.J. Stat. Ann. § 2C:43-6a(4) and N.J. Stat. Ann. § 2C:43-7a(4). State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

217. Defendant’s convictions for second and third degree assault pursuant to N.J. Stat. Ann. § 2C:12-1(b)(1) were reversed because the jury was charged that purposeful or knowing were the required culpable mental states under N.J. Stat. Ann. § 2C:12-1(b)(2), and was charged on fourth degree aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(3), but the jury was not charged that recklessness was one of the culpable mental states of that offense under N.J. Stat. Ann. § 2C:12-1(b)(1), and that accomplice liability did not apply if defendant’s state of mind was merely reckless. State v. Jackmon, 305 N.J. Super. 274, 702 A.2d 489, 1997 N.J. Super. LEXIS 429 (App.Div. 1997).

218. Resisting arrest, in violation of N.J. Stat. Ann. § 2C:29-2, was not a lesser-included offense of aggravated assault, in violation of N.J. Stat. Ann. § 2C:12-1, and defendant could be convicted of both offenses without violating N.J. Stat. Ann. § 2C:1-8. State v. Battle, 256 N.J. Super. 268, 606 A.2d 1119, 1992 N.J. Super. LEXIS 180 (App.Div. 1992).

219. Because defendant’s defense theory was that he committed aggravated assault but did not cause the victim’s death, trial court’s instruction on simple manslaughter was not a constitutionally adequate substitute for the instruction on aggravated assault requested by defendant; although aggravated assault (N.J. Stat. Ann. § 2C:12-1(b)(1)), aggravated manslaughter (N.J. Stat. Ann. § 2C:11-4(a)), and simple manslaughter (N.J. Stat. Ann. § 2C:11-4(c)) had different levels of culpability, the factual question placed in issue by the defense was the causation of the victim’s death, not the defendant’s level of culpability, and the fact that the jury chose aggravated manslaughter rather than simple manslaughter did not necessarily mean that the jury was convinced beyond a reasonable doubt that defendant caused the victim’s death. Vujosevic v. Rafferty, 844 F.2d 1023, 1988 U.S. App. LEXIS 4955 (3d Cir. N.J. 1988).

220. Conviction for second degree aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) was proper as the jury was not charged with respect to the lesser offenses where there was no offense of causing serious bodily injury negligently, and no request was made for an instruction on causing bodily injury purposely, knowingly, or recklessly pursuant to N.J. Stat. Ann. § 2C:12-1(a)(1), and it was evident that the jury found that defendant caused the injury with the requisite culpability. State v. Sloane, 217 N.J. Super. 417, 526 A.2d 226, 1987 N.J. Super. LEXIS 1163 (App.Div. 1987), reversed by 111 N.J. 293, 544 A.2d 826, 1988 N.J. LEXIS 70 (1988).

221. Offense of recklessly causing bodily injury to another with a deadly weapon, a fourth degree aggravated assault set forth in N.J. Stat. Ann. § 2C:12-1(b)(3) was not a lesser included offense, as defined in N.J. Stat. Ann. § 2C:1-8(d), to the second degree crime of aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) because the fourth degree offense required use of a deadly weapon, which was not an element of the original second degree aggravated assault charge. State v. Jones, 214 N.J. Super. 68, 518 A.2d 496, 1986 N.J. Super. LEXIS 1488 (App.Div. 1986).

222. Third degree aggravated assault with a deadly weapon was not a lesser included offense and could not be submitted to a jury without defendant’s consent; third degree aggravated assault required that the bodily injury be attempted or caused with a deadly weapon under N.J. Stat. Ann. § 2C:12-1(b)(2), but there was no requirement, however, that the attempt to cause or causing serious bodily injury in second degree aggravated assault be done with the use of a deadly weapon under N.J. Stat. Ann. § 2C:12-1(b)(1). State v. Mincey, 202 N.J. Super. 548, 495 A.2d 491, 1985 N.J. Super. LEXIS 1431 (Law Div. 1985).

223. Trial court erred by failing to charge the jury on the lesser included offense of aggravated assault under N.J. Stat Ann.§ 2C:12-1(b)(1), where the evidence might have caused the jury to have a reasonable doubt as to whether defendant was guilty of a homicide for it could have questioned whether defendant’s acts caused the victim’s death or caused serious bodily injury resulting in the victim’s death; however, the error of the trial court did not contribute to the verdict and did not lead to a reversal because the judge’s charges on murder, aggravated manslaughter, and manslaughter, were thorough and if the jury thought defendant was not responsible for the victim’s death it would not have convicted him of an offense more serious than the least severe homicide charge available to it. State v. Vujosevic, 198 N.J. Super. 435, 487 A.2d 751, 1985 N.J. Super. LEXIS 1164 (App.Div. 1985).
Criminal Law & Procedure > Jury Instructions > Particular Instructions > Theory of Defense

224. Defendant’s convictions for assault with intent to rob under former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1) and assault while armed with a dangerous knife under former N.J. Stat. Ann. § 2A:151-5 were properly reversed; the trial court in-chambers ruling that it intended to charge the jury that voluntary intoxication was not a defense to any act by defendant was premature and therefore constituted error; the effect of the ruling was to preclude defendant from taking the stand in his own defense and testifying that he did not remember committing the offenses. State v. Stasio, 78 N.J. 467, 396 A.2d 1129, 1979 N.J. LEXIS 1170 (1979).
Criminal Law & Procedure > Jury Instructions > Requests to Charge

225. Where the trial court failed to instruct the jury as to any included offense under N.J. Stat. Ann. 2C:12-1(b), for which there existed sufficient evidence for a reasonable jury to find in defendant’s favor, defendant’s conviction was reversed. State v. Farrell, 250 N.J. Super. 386, 594 A.2d 1338, 1991 N.J. Super. LEXIS 283 (App.Div. 1991).

226. In defendant’s trial on a charge of assault and battery upon a law enforcement officer in violation of former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), there was no evidence remotely suggesting that force was ever directed at defendant or that force was unnecessarily applied in any way to effectuate his detention where defendant was approached by two police officers after they had boxed in his vehicle with theirs, both police officers displayed their identifications to defendant and told him that they had a search warrant for the car and for defendant’s person, defendant attempted to move his car after being ordered to shut off the ignition and get out of the vehicle, and one of the officers lunged in and turned off the ignition. State v. Moriarty, 133 N.J. Super. 563, 338 A.2d 14, 1975 N.J. Super. LEXIS 853 (App.Div. 1975).
Criminal Law & Procedure > Verdicts > Inconsistent Verdicts

227. Where defendant was charged with assault with intent to commit sodomy, former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1), and with attempt to commit sodomy, former N.J. Stat. Ann. §§ 2A:143-1 and 2A:85-5, and defendant was only found guilty of assault with intent to commit sodomy, such verdicts were not inconsistent because although the jury might have concluded that defendant’s conduct may not have been sufficient to have reached that “degree of proximity” to establish his guilt as the one who actually committed an assault with intent to commit sodomy, it also could have properly found that defendant aided and abetted his co-defendant in the assault committed by him; likewise, the jury also may have determined that defendant’s acts in grabbing and hitting his victim were of too equivocal a character to constitute an attempt to commit a crime of a sexual nature. State v. Still, 112 N.J. Super. 368, 271 A.2d 444, 1970 N.J. Super. LEXIS 370 (App.Div. 1970).
Criminal Law & Procedure > Sentencing > Alternatives > General Overview

228. Because assault by automobile under N.J. Stat. Ann. § 2C:12-1 is merely a fourth-degree crime if serious bodily injury results and a disorderly persons offense if there is only bodily injury, the crime is well outside the presumptive denial area of the Pretrial Intervention Program under the guidelines and under N.J. Stat. Ann. § 2C:43-12. State v. Caliguiri, 305 N.J. Super. 9, 701 A.2d 920, 1997 N.J. Super. LEXIS 393 (App.Div. 1997), remanded by 152 N.J. 186, 704 A.2d 16, 1997 N.J. LEXIS 1002 (1997).
Criminal Law & Procedure > Sentencing > Appeals > General Overview

229. On appeal of the sentence imposed by a trial court of a maximum 18-month base term of incarceration and an 18-month parole disqualifying term as a result of defendant’s guilty plea to one count of fourth degree aggravated assault, the maximum base term was affirmed, despite defendant not admitting to the aggravating factors found by the trial judge at the plea hearing, as the sentencing judge was authorized to impose the agreed-upon sentence since defendant implicitly agreed to judicial factfinding in order to obtain a favorable plea agreement. However, the 18-month parole disqualifier was adjudged illegal because N.J. Stat. Ann. § 2C:43-6(b) prohibited the period of parole ineligibility to exceed one-half of the term of incarceration. State v. Soto, 385 N.J. Super. 247, 896 A.2d 1148, 2006 N.J. Super. LEXIS 132 (App.Div. 2006).
Criminal Law & Procedure > Sentencing > Consecutive Sentences

230. Consecutive sentences for assault to commit carnal abuse upon a female 14 years of age, former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1), and carnal abuse of another 14 year old female, former N.J. Stat. Ann. § 2A:138-1 in addition to armed robbery, were affirmed on appeal; the intent behind the crimes was different notwithstanding the fact the victim of both armed robbery and the sex offense was the same person. State v. Warfield, 166 N.J. Super. 129, 399 A.2d 303, 1979 N.J. Super. LEXIS 622 (App.Div. 1979).

231. Defendant’s sentence of 11 to 12 years for assault with intent to commit robbery, pursuant to former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1), and his sentence of 9 to 10 years for committing assault when armed, pursuant to former N.J. Stat. Ann. § 2A:151-5 (now N.J. Stat. Ann. § 2C:15-1), were properly aggregated because the fact that defendant was armed at the time he committed the assault was an aggravating factor. State v. Jones, 66 N.J. 563, 334 A.2d 20, 1975 N.J. LEXIS 236 (1975).

232. Imposition of consecutive sentences was not improper because the five offenses of which defendant was found guilty did not comprise a single continuous transaction where they involved (1) the planning and perpetration of the robbery, the wanton maiming of the officer in order to prevent pursuit and apprehension, and (3) the larceny of her car and kidnapping of a victim in order to facilitate flight. These represented a sequence of separate events deliberately undertaken in succession rather than a single episode, as it could hardly be contended that when the robbery was planned it was anticipated that a police officer would intervene and conduct such a vigorous pursuit that it would be necessary to shoot him or that a breakdown of defendant’s car would occur and require another means of escape. State v. Cox, 101 N.J. Super. 470, 244 A.2d 693, 1968 N.J. Super. LEXIS 549 (App.Div. 1968).
Criminal Law & Procedure > Sentencing > Cruel & Unusual Punishment

233. Defendant’s 20-year prison term for his convictions for second-degree aggravated assault and fourth-degree aggravated assault, based on his conduct in punching a corrections officer in a county jail, was not excessive; deterrence was a permissible aggravating factor to consider in imposing sentence, and no double-counting occurred because the victim’s status as a law enforcement officer was only considered once for sentencing purposes after defendant’s fourth-degree aggravated assault conviction was merged into the second-degree conviction. Additionally, the trial court did not abuse his discretion in refusing to find any mitigating factors, and the sentence was consistent with precedent. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).
Criminal Law & Procedure > Sentencing > Guidelines > Adjustments & Enhancements > General Overview

234. Under well-established canons of statutory construction, it was clear that the legislature had intended N.J. Stat. Ann. § 2C:12-1(b)(5)(d) to elevate simple assault against school employees to aggravated assault in the case of public school employees, not private school employees; appreciating that public policy might well be better served by a statute that protected all educational employees, the court suggested that the legislature consider the issue of expanding the statute’s coverage. State v. Cannarella, 186 N.J. 63, 891 A.2d 609, 2006 N.J. LEXIS 16 (2006).
Criminal Law & Procedure > Sentencing > Guidelines > Adjustments & Enhancements > Criminal History > Prior Felonies

235. Defendant’s claim that the U.S. Sentencing Guidelines Manual excluded his minor municipal violation as an offense to be counted toward his criminal history for sentencing purposes was rejected on appeal because U.S. Sentencing Guidelines Manual 4A1.2(c)(1) did not exclude local ordinance violations that were also criminal offenses under state law; under N.J. Stat. Ann. § 2C:29-1(b) defendant’s prior offense of obstruction of administration of law or other governmental function could have been considered a crime of the fourth degree. United States v. Lamar, 88 Fed. Appx. 487, 2004 U.S. App. LEXIS 2201 (3d Cir. N.J. 2004).
Criminal Law & Procedure > Sentencing > Imposition > General Overview

236. On appeal of the sentence imposed by a trial court of a maximum 18-month base term of incarceration and an 18-month parole disqualifying term as a result of defendant’s guilty plea to one count of fourth degree aggravated assault, the maximum base term was affirmed, despite defendant not admitting to the aggravating factors found by the trial judge at the plea hearing, as the sentencing judge was authorized to impose the agreed-upon sentence since defendant implicitly agreed to judicial factfinding in order to obtain a favorable plea agreement. However, the 18-month parole disqualifier was adjudged illegal because N.J. Stat. Ann. § 2C:43-6(b) prohibited the period of parole ineligibility to exceed one-half of the term of incarceration. State v. Soto, 385 N.J. Super. 247, 896 A.2d 1148, 2006 N.J. Super. LEXIS 132 (App.Div. 2006).

237. Where defendant’s plea bargain required downgrading second degree aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(1) to the third degree, the trial court’s maximum third degree sentence under N.J. Stat. Ann. §§ 2C:43-6(a)(3) and 2C:43-6(b) was contradictory and illegal; the downgrade was permitted by N.J. Stat. Ann. § 2C:44-1(f)(2) only where the mitigating factors predominated, and the maximum sentence was permitted only where the aggravating factors outweighed mitigating factors. State v. Nemeth, 214 N.J. Super. 324, 519 A.2d 367, 1986 N.J. Super. LEXIS 1537 (App.Div. 1986).
Criminal Law & Procedure > Sentencing > Imposition > Factors

238. Trial court properly applied the New Jersey No Early Release Act, N.J. Stat. Ann. § 2C:43-7.2, in sentencing a defendant who was convicted of aggravated assault because the evidence showed that the jury found beyond a reasonable doubt that the defendant used a deadly weapon in commission of the offense. State v. Mclean, 2001 N.J. Super. LEXIS 366 (App.Div. Oct. 2 2001).

239. Defendant’s 20-year prison term for his convictions for second-degree aggravated assault and fourth-degree aggravated assault, based on his conduct in punching a corrections officer in a county jail, was not excessive; deterrence was a permissible aggravating factor to consider in imposing sentence, and no double-counting occurred because the victim’s status as a law enforcement officer was only considered once for sentencing purposes after defendant’s fourth-degree aggravated assault conviction was merged into the second-degree conviction. Additionally, the trial court did not abuse his discretion in refusing to find any mitigating factors, and the sentence was consistent with precedent. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

240. Imposition of 10 years of imprisonment, the maximum possible term, and a four-year minimum term, for possession of a handgun for an unlawful purpose, together with the consecutive nature of the penalties for defendant’s simple assault convictions, was so clearly unreasonable as to shock the judicial conscience; the four-year minimum term imposed on the 18-year-old exceeded the three-year requirement of N.J. Stat. Ann. § 2C:43-6(c), and although the offense was serious, the gun was unloaded and defendant’s prior record consisted of two thefts. State v. Bryant, 237 N.J. Super. 102, 567 A.2d 212, 1988 N.J. Super. LEXIS 527 (App.Div. 1988), reversed by 117 N.J. 495, 569 A.2d 770, 1989 N.J. LEXIS 135 (1989).

241. Where defendant’s plea bargain required downgrading second degree aggravated assault under N.J. Stat. Ann. § 2C:12-1(b)(1) to the third degree, the trial court’s maximum third degree sentence under N.J. Stat. Ann. §§ 2C:43-6(a)(3) and 2C:43-6(b) was contradictory and illegal; the downgrade was permitted by N.J. Stat. Ann. § 2C:44-1(f)(2) only where the mitigating factors predominated, and the maximum sentence was permitted only where the aggravating factors outweighed mitigating factors. State v. Nemeth, 214 N.J. Super. 324, 519 A.2d 367, 1986 N.J. Super. LEXIS 1537 (App.Div. 1986).

242. Because the police status of a victim was an essential element of the crime of aggravated assault upon a law enforcement officer under N.J. Stat. Ann. § 2C:12-1(b)(5)(a), that element could not be used as an aggravating factor to impose a custodial sentence longer than the presumptive term or to impose a period of parole ineligibility. State v. Link, 197 N.J. Super. 615, 485 A.2d 1069, 1984 N.J. Super. LEXIS 1269 (App.Div. 1984).

243. An order of restitution imposed upon a defendant convicted of obtaining money by false pretenses in violation of former N.J. Stat. Ann. § 2A:111-2, unlawful possession of a weapon in violation of former N.J. Stat. Ann. § 2A:151-41(a), and atrocious assault and battery in violation of former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1) as a condition of his custodial sentence was vacated because there was no statutory authority for such an imposition. State v. Wright, 156 N.J. Super. 559, 384 A.2d 199, 1978 N.J. Super. LEXIS 839 (App.Div. 1978).

244. Where there is a single attack on a police officer, such attack, if atrocious, will be in violation of both former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1) and former N.J. Stat. Ann. § 2A:90-4; however, such a single attack can result in a conviction and sentence on only one or the other of the two charges. State v. Richardson, 73 N.J. 82, 372 A.2d 1093, 1977 N.J. LEXIS 184 (1977).

245. Where there is a single attack on a police officer, such attack, if atrocious, will be in violation of both former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1) and former N.J. Stat. Ann. § 2A:90-4; however, such a single attack can result in a conviction and sentence on only one of the two charges. State v. Richardson, 73 N.J. 82, 372 A.2d 1093, 1977 N.J. LEXIS 184 (1977).

246. Defendant’s sentence to 30 years’ confinement for a conviction of assault with intent to kill, former N.J. Rev. Stat. § 2:110-2 (now N.J. Stat. Ann. § 2C:12-1) was illegal on the ground that, while he was a repeat offender, the State had failed to charge him as such; in setting aside the sentence and by imposing a sentence of 12 years to be served consecutively to and not concurrently with the other sentences, the trial court acted properly because it had substantially reduced defendant’s sentence and did not increase its severity. State v. Weeks, 6 N.J. Super. 395, 71 A.2d 644, 1950 N.J. Super. LEXIS 879 (App.Div. 1950).
Criminal Law & Procedure > Sentencing > Imposition > Findings

247. Eighteen year prison term, which was the sentence recommended by the plea agreement, and a subsequent five-year period of parole supervision on count one, with a concurrent five-year term and subsequent three-year period of parole supervision on the other count, both subject to an 85 percent parole disqualifier, which was imposed against a defendant following his convictions for first-degree manslaughter and second-degree aggravated assault, was upheld on appeal as it was valid and within the trial court’s discretion to reject the applicability of the mitigating factors argued by the defendant. The Supreme Court of New Jersey found no basis whatsoever for questioning the trial court’s understanding of its authority and that the trial judge unequivocally expressed his recognition that although the defendant entered into a negotiated plea agreement, the trial court, and it alone, had the exclusive authority to accept or reject the plea agreement; and, under the circumstances, the sentence imposed was clearly the sentence that the trial court chose to impose, and the trial court adhered to the sentencing principles set forth in the guidelines and defined in case law. State v. Bieniek, 200 N.J. 601, 985 A.2d 1251, 2010 N.J. LEXIS 6 (2010).
Criminal Law & Procedure > Sentencing > Merger

248. Both resisting arrest, N.J. Stat. Ann. § 2C:29-2a, and eluding, N.J. Stat. Ann. § 2C:29-2b, have their respective counterpart offenses of aggravated assault, and specifically listing the police officer as the victim of the crime; consequently, these offenses do not merge at the time of sentencing with offenses under N.J. Stat. Ann. § 2C:29-2. State v. Brannon, 358 N.J. Super. 96, 817 A.2d 331, 2003 N.J. Super. LEXIS 68 (App.Div. 2003), reversed by, remanded by 178 N.J. 500, 842 A.2d 148, 2004 N.J. LEXIS 128 (2004).

249. Charges of driving under the influence of alcohol in violation of N.J. Stat. Ann. § 39:4-50 and of second-degree aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(1) do not merge for purposes of sentencing because intoxication is not an element of the assault charge. State v. Mara, 253 N.J. Super. 204, 601 A.2d 718, 1992 N.J. Super. LEXIS 14 (App.Div. 1992).

250. Defendant’s convictions for second degree aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b) were vacated because the convictions merged with defendant’s convictions for attempted murder of the same victims in violation of N.J. Stat. Ann. §§ 2C:5-1 and 2C:11-3. State v. Russo, 243 N.J. Super. 383, 579 A.2d 834, 1990 N.J. Super. LEXIS 342 (App.Div. 1990).

251. Defendant’s contention on appeal was erroneous that a conviction on a possession charge in violation of N.J. Stat. Ann. § 2C:39-4(d) should have been merged with convictions for aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(2); the merger doctrine was inapplicable where a guilty verdict on the possession charge could be reached without proof of the assault, and proof of the illegality of possession was not necessary for the aggravated assault charge. State v. Jones, 213 N.J. Super. 562, 517 A.2d 1219, 1986 N.J. Super. LEXIS 1508 (App.Div. 1986).

252. Defendant’s contention on appeal was erroneous that a conviction for aggravated assault in violation of N.J. Stat. Ann. § 2C:12-1(b)(2) should have been merged with armed robbery convictions under N.J. Stat. Ann. § 2C:15-1; the merger doctrine was inapplicable where the use of a razor to inflict bodily harm, that continued long after the robbery offense had been committed, was a separate transaction from the threats made with the razor to facilitate the robbery. State v. Jones, 213 N.J. Super. 562, 517 A.2d 1219, 1986 N.J. Super. LEXIS 1508 (App.Div. 1986).

253. While a conspiracy to commit murder was not a conspiracy to commit aggravated assault, the aggravated assault of the victim, under N.J. Stat. Ann. § 2C:12-1(b)(1), merged with the conspiracy to murder him where the aggravated assault was a Graves Act crime, which required a mandatory extended prison term. State v. Connell, 208 N.J. Super. 688, 506 A.2d 829, 1986 N.J. Super. LEXIS 1172 (App.Div. 1986).

254. Legislature intended that a conspiracy to commit murder carry a greater kind of culpability than an aggravated assault of an intended murder victim, N.J. Stat. Ann. § 2C:12-1(b)(1), even though both were crimes of the same degree. State v. Connell, 208 N.J. Super. 688, 506 A.2d 829, 1986 N.J. Super. LEXIS 1172 (App.Div. 1986).

255. In an action charging defendant with assault with intent to kill, a violation of former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1), and with assault by shooting a pistol at the victim, a trial court erred in merging the greater offense into the lesser offense and acquitting defendant on the greater offense, assault with intent to kill, because the state did not have the burden of proving that defendant intended to kill the victim to convict him on the assault by shooting charge. State v. Parker, 153 N.J. Super. 535, 380 A.2d 710, 1977 N.J. Super. LEXIS 1145 (App.Div. 1977).

256. The court vacated defendant’s conviction for assault with intent to rob in violation of former N.J. Stat. Ann. § 2A:90-2 (now N.J. Stat. Ann. § 2C:12-1) where defendant’s sentence for that charge and robbery constituted a double punishment for a single offense, as the lesser offense of assault with intent to rob was a component of the greater charge of robbery; thus, a merger of the two charges arose upon the robbery conviction. State v. Hill, 44 N.J. Super. 110, 129 A.2d 752, 1957 N.J. Super. LEXIS 494 (App.Div. 1957).
Criminal Law & Procedure > Sentencing > Multiple Convictions

257. Defendant’s single attack on a police officer in violation of both the atrocious assault and battery statute, former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1), and the assault and battery upon a police officer statute, former N.J. Stat. Ann. § 2A:90-4 (now N.J. Stat. Ann. § 2C:12-1), could result in only one conviction and punishment, not two, although the offenses did not merge. State v. Richardson, 73 N.J. 82, 372 A.2d 1093, 1977 N.J. LEXIS 184 (1977).
Criminal Law & Procedure > Sentencing > Restitution

258. An order of restitution imposed upon a defendant convicted of obtaining money by false pretenses in violation of former N.J. Stat. Ann. § 2A:111-2, unlawful possession of a weapon in violation of former N.J. Stat. Ann. § 2A:151-41(a), and atrocious assault and battery in violation of former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1) as a condition of his custodial sentence was vacated because there was no statutory authority for such an imposition. State v. Wright, 156 N.J. Super. 559, 384 A.2d 199, 1978 N.J. Super. LEXIS 839 (App.Div. 1978).
Criminal Law & Procedure > Postconviction Proceedings > Expungement

259. As a husband’s simple assault on his wife, to whom he was still married after 10 years, was an apparent aberration in an otherwise law-abiding life, he was entitled to have his criminal records expunged notwithstanding the prosecutor’s objection. In re Criminal Records of H.M.H., 404 N.J. Super. 174, 960 A.2d 821, 2008 N.J. Super. LEXIS 227 (Ch.Div. 2008).
Criminal Law & Procedure > Appeals > Remands & Remittiturs

260. Where defendant was convicted of second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1), but the jury did not decide whether defendant had actually caused or threatened to cause serious bodily injury and/or whether defendant used or threatened to use a deadly weapon, if the State sought to impose a No Early Release Act (NERA) sentence on remand, the jury was to determine, applying the beyond-a-reasonable-doubt standard, whether defendant attempted or caused serious bodily injury and the trial court was to draft limiting instructions as to the NERA predicate of whether defendant used or threatened to use a deadly weapon. State v. Natale, 178 N.J. 51, 834 A.2d 1024, 2003 N.J. LEXIS 1531 (2003), remanded by 373 N.J. Super. 226, 861 A.2d 148, 2004 N.J. Super. LEXIS 407 (App.Div. 2004).
Criminal Law & Procedure > Appeals > Reversible Errors > General Overview

261. In a prosecution for aggravated assault, weapons offenses, and contempt for violation of a domestic violence restraining order, the trial court erred in failing to sever the contempt charge and in admitting the restraining order as evidence of other crimes. As defendant’s state of mind was at issue as to the assault and weapons charges, the error was reversible. State v. Lewis, 389 N.J. Super. 409, 913 A.2d 157, 2007 N.J. Super. LEXIS 6 (App.Div. 2007).

262. Under N.J. Stat. Ann. § 2C:12-1(b)(6), the word “injury” means “bodily injury” as opposed to the mere risk of injury when used in the phrase “death or injury”; the lack of an instruction charging a jury with the “bodily injury” definition of N.J. Stat. Ann. § 2C:11-1(a) is reversible error because the injury is an element of the offense of eluding. State v. Dorko, 298 N.J. Super. 54, 688 A.2d 1109, 1997 N.J. Super. LEXIS 86 (App.Div. 1997).

263. Trial court erred by failing to charge the jury on the lesser included offense of aggravated assault under N.J. Stat Ann.§ 2C:12-1(b)(1), where the evidence might have caused the jury to have a reasonable doubt as to whether defendant was guilty of a homicide for it could have questioned whether defendant’s acts caused the victim’s death or caused serious bodily injury resulting in the victim’s death; however, the error of the trial court did not contribute to the verdict and did not lead to a reversal because the judge’s charges on murder, aggravated manslaughter, and manslaughter, were thorough and if the jury thought defendant was not responsible for the victim’s death it would not have convicted him of an offense more serious than the least severe homicide charge available to it. State v. Vujosevic, 198 N.J. Super. 435, 487 A.2d 751, 1985 N.J. Super. LEXIS 1164 (App.Div. 1985).
Criminal Law & Procedure > Appeals > Standards of Review > Harmless & Invited Errors > General Overview

264. Inmate convicted of aggravated assault, N.J. Stat. Ann. § 2C:12-1, was not entitled to habeas corpus relief because the admission of a hearsay statement made by police detective, that what defendant had told him was “consistent with” what the co-defendant had told him, was harmless error given the other overwhelming evidence of guilt. Miller v. Hendricks, 2005 U.S. Dist. LEXIS 30603 (D.N.J. Dec. 2 2005), affirmed by 282 Fed. Appx. 102, 2008 U.S. App. LEXIS 12531 (3d Cir. N.J. 2008).

265. Where defendant was convicted of fourth-degree aggravated assault, which merged with his conviction for second-degree aggravated assault, he was not entitled to reversal of his convictions on the ground that the trial court failed to sua sponte instruct the jury on third-degree assault as a lesser-included offense; although defendant was entitled to the instruction on third-degree assault, he did not request the instruction, and a specific jury finding that the officer suffered bodily injury would have elevated his conviction from a fourth-degree offense to a third-degree offense. Moreover, the jury was not forced to choose between acquitting defendant or finding him guilty of second-degree assault because it was also instructed on fourth-degree aggravated assault, and defendant may have strategically elected not to have the third-degree offense charged because of the differences in prison terms that are provided for under N.J. Stat. Ann. § 2C:43-6a(4) and N.J. Stat. Ann. § 2C:43-7a(4). State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).
Criminal Law & Procedure > Appeals > Standards of Review > Plain Error > General Overview

266. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the trial court did not commit plain error in failing to sua sponte provide an instruction on the use of force in defense of others; the record was devoid of a rational basis upon which the jury could have found that defendant acted in defense of another inmate. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).

267. Where defendant was charged with second-degree aggravated assault under N.J. Stat. Ann. § 2C:12-1b(1) based on his conduct in punching a corrections officer at a county jail, the trial court did not commit plain error in failing to sua sponte provide a self-defense instruction; the evidence did not support defendant’s claim that he was in danger of being harmed by the officer. State v. Doss, 310 N.J. Super. 450, 708 A.2d 1219, 1998 N.J. Super. LEXIS 171 (App.Div. 1998).
Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview

268. Appellate court rejected defendant’s sufficiency of the evidence claims as lacking sufficient merit to warrant discussion in a written decision, pursuant to N.J. Ct. R. 2:11-3(e)(2), because the victims’ and the co-defendants’ testimony that defendant entered a victim’s house with the co-defendants, that defendant took part in threatening the victims in the house with guns, that defendant and his co-defendants robbed the victims, and that a victim was hit in the head was adequate to defeat a motion for judgment of acquittal and support the convictions; a reasonable jury could have found defendant’s guilt of the crime beyond a reasonable doubt after considering all of the State of New Jersey’s evidence and giving the State the benefit of all favorable evidence and inferences. State v. Fletcher, 380 N.J. Super. 80, 880 A.2d 1171, 2005 N.J. Super. LEXIS 257 (App.Div. 2005).
Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > Sufficiency of Evidence

269. Defendant’s conduct of placing the victim in a headlock for 20 to 30 seconds, squeezing his neck and yanking and swinging him around was sufficient to establish that the victim incurred physical pain to satisfy the element of a bodily injury required for the simple assault conviction against defendant, despite no testimony about the victim’s pain and that he did not sustain bruises or seek or receive treatment. State v. Stull, 403 N.J. Super. 501, 959 A.2d 286, 2008 N.J. Super. LEXIS 238 (App.Div. 2008).

270. Where the arresting officer testified that (1) when he told defendant he was going to take him into custody, defendant resisted by pulling back, and struck the officer in the chest with his elbow; and (2) defendant refused to be handcuffed during a lawful arrest, the evidence had been sufficient to adjudicate defendant delinquent of an offenses that would have constituted fourth-degree aggravated assault (N.J. Stat. Ann. § 2C:12-1(b)(5)(a)) State ex rel. X.B., 402 N.J. Super. 23, 952 A.2d 521, 2008 N.J. Super. LEXIS 168 (App.Div. 2008).
Evidence > Hearsay > Exceptions > Spontaneous Statements > Criminal Trials

271. With regard to reinstating defendant’s convictions for child abuse, it was determined on appeal that the trial court did not abuse its discretion in determining that a child’s statements to his mother and a Division of Youth and Family Services worker were properly admitted into evidence as excited utterances under N.J. R. Evid. 803(c)(2) as the child’s statements were not testimonial and, hence, their admission at trial did not run afoul of the Confrontation Clause. State v. Buda, 195 N.J. 278, 949 A.2d 761, 2008 N.J. LEXIS 789 (2008), remanded by 2008 N.J. Super. Unpub. LEXIS 2551 (App.Div. July 24, 2008).
Evidence > Hearsay > Rule Components

272. Inmate convicted of aggravated assault, N.J. Stat. Ann. § 2C:12-1, was not entitled to habeas corpus relief because the admission of a hearsay statement made by police detective, that what defendant had told him was “consistent with” what the co-defendant had told him, was harmless error given the other overwhelming evidence of guilt. Miller v. Hendricks, 2005 U.S. Dist. LEXIS 30603 (D.N.J. Dec. 2 2005), affirmed by 282 Fed. Appx. 102, 2008 U.S. App. LEXIS 12531 (3d Cir. N.J. 2008).
Evidence > Inferences & Presumptions > Presumptions

273. Rule barring extrapolation evidence of defendant’s blood alcohol concentration in per se violations of a driving under the influence statute, N.J. Stat. Ann. § 39:4-50(a), did not bar extrapolation evidence under aggravated assault and reckless driving statutes, N.J. Stat. Ann. §§ 2C:12-1(b) and 2C:12-1(c). State v. Oriole, 243 N.J. Super. 688, 581 A.2d 142, 1990 N.J. Super. LEXIS 361 (Law Div. 1990).
Evidence > Procedural Considerations > Weight & Sufficiency

274. Victim’s identification of defendant as the person who attacked him and stole his leather coat, wallet, and shopping bag provided sufficient evidence to support the inmate’s conviciton for robbery and aggravated assault. Miller v. Sherrer, 2005 U.S. Dist. LEXIS 16417 (D.N.J. Aug. 3 2005).

275. In a prosecution for first degree robbery, N.J.S.A. 2C:15-1, and second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), the evidence was sufficient to withstand defendant’s motion for a judgment of acquittal, and the jury’s verdict did not constitute a miscarriage of justice; the jury could reasonably find based on the evidence that defendant and his accomplices either inflicted or attempted to inflict serious bodily injury on an undercover agent while in the course of attempting to steal his money. State v. Leopardi, 305 N.J. Super. 70, 701 A.2d 952, 1997 N.J. Super. LEXIS 422 (App.Div. 1997).
Evidence > Relevance > Prior Acts, Crimes & Wrongs

276. With regard to defendant’s convictions for first-degree kidnapping, second-degree robbery,and third-degree terroristic threats, following a jury trial with regard to actions involving his girlfriend and holding her captive in a locked room for over 13 hours, he was awarded a new trial as the brief trial in the case was poisoned by the recurring admission of evidence of other crimes and wrongdoings by him and by reference to the domestic violence restraining order against him. The trial judge’s curative instruction was insufficient as it did not identify what was “blurted out” or what information was “not part of the case,” thus, defendant was denied a fair trial. State v. Vallejo, 198 N.J. 122, 965 A.2d 1181, 2009 N.J. LEXIS 54 (2009).

277. With regard to defendant’s convictions for first-degree kidnapping, second-degree robbery, third-degree terroristic threats, and a disorderly persons offense of simple assault following a jury trial with regard to actions involving his girlfriend and holding her captive in a locked room for over 13 hours, he was awarded a new trial as the brief trial in the case was poisoned by the recurring admission of evidence of other crimes and wrongdoings by him and by reference to the domestic violence restraining order against him. The trial judge’s curative instruction was insufficient as it did not identify what was “blurted out” or what information was “not part of the case,” thus, defendant was denied a fair trial. State v. Vallejo, 198 N.J. 122, 965 A.2d 1181, 2009 N.J. LEXIS 54 (2009).

278. At a jury trial on charges of aggravated assault, unlawful possession of a firearm, and possession of a weapon for an unlawful purpose, the State’s witnesses were properly allowed to testify that the defendant was known to carry a gun and had been seen carrying the gun in question on other occasions where the testimony was introduced to tie the gun which was found at the scene of the crime to defendant; further, the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice to the defendant because, in order to prove its case, the State needed to establish that the gun was in the possession of defendant on the date in question and, in an effort to do so, the State attempted to show that defendant in fact owned the gun and, in addition, the defense had the opportunity to cross-examine the witnesses and to provide its own witness who denied seeing defendant with the gun. State v. Carswell, 303 N.J. Super. 462, 697 A.2d 171, 1997 N.J. Super. LEXIS 342 (App.Div. 1997).

279. Defendant’s convictions for atrocious assault and battery, former N.J. Stat. Ann. § 2A:90-1 (now N.J. Stat. Ann. § 2C:12-1), and former armed robbery, N.J. Stat. Ann. § 2A:141-1 (now N.J. Stat. Ann. § 2C:15-1), were not subject to habeas corpus attack based on the admission of other crimes evidence; evidence of his robbery of another was admissible to show a common scheme and plan, and the mention of appellant’s rape offense was volunteered by a prosecution witness and reproved by the prosecutor. United States ex rel. Watson v. Yeager, 458 F.2d 23, 1972 U.S. App. LEXIS 10439 (3d Cir. N.J. 1972).
Evidence > Scientific Evidence > DNA

280. If an aggravated assault defendant was able to show that newly developed DNA techniques could yield definitive findings, such tests should be ordered under the supervision of the court, who then would determine whether any newly discovered evidence would probably change the jury’s verdict if a new trial were granted. State v. Velez, 329 N.J. Super. 128, 746 A.2d 1073, 2000 N.J. Super. LEXIS 103 (App.Div. 2000).
Family Law > Family Protection & Welfare > General Overview

281. Defendant neighbor, who was engaged to plaintiff’s daughter and the father of plaintiff’s grandson, was sufficiently connected to plaintiff’s household to be subject to a restraining order under the Prevention of Domestic Violence Act of 1991, N.J. Stat. Ann. §§ 2C:25-17 to 2C:25-33. Defendant committed acts of “domestic violence” as defined in N.J. Stat. Ann. § 2C:25-19(a); defendant purposely struck plaintiff with a cane. which constituted assault under N.J. Stat. Ann. § 2C:12-1, and he also pushed her out of her home and locked the door, which constituted criminal restraint and/or harassment under N.J. Stat. Ann. § 2C:13-2 and N.J. Stat. Ann. § 2C:33-4. South v. North, 304 N.J. Super. 104, 698 A.2d 553, 1997 N.J. Super. LEXIS 372 (Ch.Div. 1997).
Family Law > Family Protection & Welfare > Cohabitants & Spouses > General Overview

282. Where the criminal statute alleged to have been violated in the civil domestic violence complaint was assault under N.J. Stat. Ann. § 2C:12-1, which could by definition be committed by purposeful, knowing, or reckless conduct and which was incorporated by reference in the Prevention of Domestic Violence Act of 1991 (PDVA), N.J. Stat. Ann. § 2C:25-17 et seq., as something that could be an act of domestic violence if committed against a person protected by the PDVA, specifically N.J. Stat. Ann. § 2C:25-19(a), any finding of domestic violence precluded insurance coverage for the perpetrator for the cost of defense or indemnification for damages under a homeowners’ insurance policy where the policy had an intentional act exclusion. Bittner v. Harleysville Ins. Co., 338 N.J. Super. 447, 769 A.2d 1085, 2001 N.J. Super. LEXIS 129 (App.Div. 2001).
Governments > Legislation > Interpretation

283. N.J. Stat. Ann. § 2C:11-1(c) sets forth an objective definition of deadly weapon as one that is ordinarily capable of causing a grievous or fatal injury. State v. Jules, 345 N.J. Super. 185, 784 A.2d 722, 2001 N.J. Super. LEXIS 409 (App.Div. 2001).
Governments > Local Governments > Employees & Officials

284. Defendant forfeited position as a police officer pursuant to N.J. Stat. Ann. § 2C:51-2a(2) and defendant’s right to future public employment pursuant to N.J. Stat. Ann. § 2C:51-2d, because defendant’s offense of fourth degree aggravated assault by pointing a gun in the direction of another under circumstances manifesting extreme indifference to human life, a violation of N.J. Stat. Ann. § 2C:12-1b(4), was directly related to, and involved and touched on, defendant’s position as a police officer where the facts in defendant’s case showed that, after the victim allegedly rear-ended a mini-van driven by defendant’s wife while defendant was a passenger, defendant, who was off-duty, (1) displayed his badge and identified himself as an officer after he and his wife stopped the fleeing vehicle, thus, invoking the power vested in him as an officer of the law, and (2) fired at the victim using a service revolver that defendant was only allowed to legally carry without a permit pursuant to N.J. Stat. Ann. § 2C:39-6a(7)(a) by virtue of his status as a police officer. State v. Williams, 355 N.J. Super. 579, 810 A.2d 1169, 2002 N.J. Super. LEXIS 482 (App.Div. 2002).
Immigration Law > Denaturalization > Grounds

285. Resident’s certificate of naturalization could not be cancelled due to the resident’s conviction under N.J. Stat. Ann. § 2C:12-1b(5)(a) for third degree aggravated assault of a police officer because the crime could not be considered to be a crime of moral turpitude, as (1) a complaint charging the resident with the more serious crime of attempt to cause bodily injury, under N.J. Stat. Ann. § 2C:12-1(a)(1), could not be considered as part of the resident’s record of conviction, since the complaint did not function as the charging instrument, and (2) the other documents which comprised the resident’s record of conviction did not state the type of assault the resident committed, so it had to be presumed that the resident committed the least culpable conduct under the applicable statute, which was negligent assault with a deadly weapon, under N.J. Stat. Ann. § 2C:12-1(a)(2), which was not a crime of moral turpitude. United States v. Rebelo, 646 F. Supp. 2d 682, 2009 U.S. Dist. LEXIS 74289 (D.N.J. 2009).
Immigration Law > Deportation & Removal > Grounds > Criminal Activity > Moral Turpitude

286. Because the alien’s attempted aggravated assault convicting under N.J. Stat. Ann. § 2C:12-1(b)(7) was a crime of moral turpitude as he intended to cause injury to his wife, and intending to cause significant bodily injury involved moral turpitude, pursuant to 8 U.S.C.S. § 1252(a)(2)(C), (a)(2)(D), the court was precluded from reviewing the alien’s Immigration and Nationality Act § 212(h) waiver claim or the impact his change in status from a conditional to a permanent legal resident had on his removability. Andres v. AG of the United States, 263 Fed. Appx. 212, 2008 U.S. App. LEXIS 2099 (3d Cir. 2008).
Immigration Law > Deportation & Removal > Relief > Waivers

287. Because the alien’s attempted aggravated assault convicting under N.J. Stat. Ann. § 2C:12-1(b)(7) was a crime of moral turpitude as he intended to cause injury to his wife, and intending to cause significant bodily injury involved moral turpitude, pursuant to 8 U.S.C.S. § 1252(a)(2)(C), (a)(2)(D), the court was precluded from reviewing the alien’s Immigration and Nationality Act § 212(h) waiver claim or the impact his change in status from a conditional to a permanent legal resident had on his removability. Andres v. AG of the United States, 263 Fed. Appx. 212, 2008 U.S. App. LEXIS 2099 (3d Cir. 2008).
Insurance Law > Property Insurance > Exclusions > General Overview

288. Where the criminal statute alleged to have been violated in the civil domestic violence complaint was assault under N.J. Stat. Ann. § 2C:12-1, which could by definition be committed by purposeful, knowing, or reckless conduct and which was incorporated by reference in the Prevention of Domestic Violence Act of 1991 (PDVA), N.J. Stat. Ann. § 2C:25-17 et seq., as something that could be an act of domestic violence if committed against a person protected by the PDVA, specifically N.J. Stat. Ann. § 2C:25-19(a), any finding of domestic violence precluded insurance coverage for the perpetrator for the cost of defense or indemnification for damages under a homeowners’ insurance policy where the policy had an intentional act exclusion. Bittner v. Harleysville Ins. Co., 338 N.J. Super. 447, 769 A.2d 1085, 2001 N.J. Super. LEXIS 129 (App.Div. 2001).
Legal Ethics > Sanctions > General Overview

289. Where attorney was convicted of simple assault contrary to N.J. Stat. Ann. § 2C:12-1a(1), the conviction constituted a violation of Rule of Prof. Conduct 8.4(b), and, after considering the interests of the public, the bar, and attorney, and after considering the nature and severity of the crime, whether the crime was related to the practice of law, and any mitigating factors such as attorney’s reputation, his prior trustworthy conduct, and general good conduct, the court concluded that attorney’s suspension from practice for three months was the appropriate discipline. In re Margrabia, 150 N.J. 198, 695 A.2d 1378, 1997 N.J. LEXIS 200 (1997).

290. Attorney was publicly reprimanded following conviction of simple assault based on an incident of domestic violence with his girlfriend in violation of N.J. Stat. Ann. § 2C:12-1a(1) because the disorderly persons offense was clear and convincing evidence that the attorney violated N.J. Ct. R., R. Prof. Conduct 8.4(b). In re Magid, 139 N.J. 449, 655 A.2d 916, 1995 N.J. LEXIS 45 (1995).
Legal Ethics > Sanctions > Reprimands

291. Attorney was publicly reprimanded following conviction of simple assault based on an incident of domestic violence with his girlfriend in violation of N.J. Stat. Ann. § 2C:12-1a(1) because the disorderly persons offense was clear and convincing evidence that the attorney violated N.J. Ct. R., R. Prof. Conduct 8.4(b). In re Magid, 139 N.J. 449, 655 A.2d 916, 1995 N.J. LEXIS 45 (1995).
Public Health & Welfare Law > Housing & Public Buildings > Low Income Housing

292. Tenant who assaulted two other tenants and was convicted of simple assault, N.J. Stat. Ann. § 2C:12-1(a)(1), a disorderly persons offense, and harassment, N.J. Stat. Ann. § 2C:33-4(a), a petty disorderly persons offense, was properly evicted from federally subsidized public housing; the term “criminal activity” in 42 U.S.C.S. § 1437d(l)(6) is sufficiently broad to encompass disorderly persons offenses. Housing & Redevelopment Authority of Tp. of Franklin v. Miller, 397 N.J. Super. 1, 935 A.2d 1197, 2007 N.J. Super. LEXIS 346 (App.Div. 2007).
Torts > Intentional Torts > False Imprisonment > General Overview

293. Because city and its police officers had probable cause to charge the arrestee with vehicular aggravated assault, harassment, and reckless driving under N.J. Stat. Ann. §§ 2C:33-4, 2C:12-1(b)(1) and 39:4-96, they were entitled to summary judgment on arrestee’s malicious prosecution and false arrest claims. Herman v. City of Millville, 2002 U.S. Dist. LEXIS 26300 (D.N.J. Mar. 21 2002), affirmed by 66 Fed. Appx. 363, 2003 U.S. App. LEXIS 8549 (3d Cir. N.J. 2003).

294. District court improperly granted summary judgment to the police officer on the false arrest claim in the plaintiff’s 42 U.S.C.S. § 1983 action arising from an altercation between the plaintiff and the police officer inside the plaintiff’s home because the plaintiff could not have committed the offense of disorderly conduct in his own home and, therefore, the police could not have had probable cause to arrest the plaintiff on the charge of disorderly conduct; it was a jury question as to whether the police had probable cause to arrest the plaintiff on the aggravated assault charge. Groman v. Township of Manalapan, 47 F.3d 628, 1995 U.S. App. LEXIS 2929 (3d Cir. N.J. 1995).
Torts > Intentional Torts > Malicious Prosecution > General Overview

295. As a detective reasonably believed plaintiff attempted to menace him by his challenging words and movements, the detective had probable cause to filed assault charges against plaintiff under N.J. Stat. Ann. § 2C:12-1(b)(5)(A). Therefore, the detective was entitled to summary judgment on plaintiff’s malicious prosecution claim. Witten v. Duffy, 2005 U.S. Dist. LEXIS 25718 (D.N.J. Oct. 28 2005).

296. Because city and its police officers had probable cause to charge the arrestee with vehicular aggravated assault, harassment, and reckless driving under N.J. Stat. Ann. §§ 2C:33-4, 2C:12-1(b)(1) and 39:4-96, they were entitled to summary judgment on arrestee’s malicious prosecution and false arrest claims. Herman v. City of Millville, 2002 U.S. Dist. LEXIS 26300 (D.N.J. Mar. 21 2002), affirmed by 66 Fed. Appx. 363, 2003 U.S. App. LEXIS 8549 (3d Cir. N.J. 2003).
Torts > Intentional Torts > Malicious Prosecution > Elements > Favorable Termination

297. Where the indictable charge against plaintiff of assault with intent to kill was returned by the grand jury as a “no bill” and where all disorderly persons charges against plaintiff and his sons were thereafter dismissed by agreement, plaintiff’s action for malicious prosecution against the victim failed, as plaintiff failed to establish the element of a favorable termination of the criminal prosecution for assault with intent to kill. Mondrow v. Selwyn, 172 N.J. Super. 379, 412 A.2d 447, 1980 N.J. Super. LEXIS 446 (App.Div. 1980).

About Anthony Vecchio

Experienced criminal defense attorney Anthony J. Vecchio is a member of the New Jersey Association of Criminal Defense Lawyers and the New Jersey State Bar Association, among others. He serves clients charged with DWI, drug crimes, violent crimes, and other criminal charges throughout New Jersey. Anthony Vecchio's Google+ Profile

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