New Jersey Criminal Defense Law Blog : New Jersey Criminal Defense Lawyer & Attorney : John Marshall Law Firm : Drug Crimes, Domestic Violence : Monmouth, Middlesex & Union Counties

Today, I received another telephone call from an individual who attempted to defend a simple assault charge on his own. The result was a conviction for simple assault in accordance with N.J.S.A. 2C:12-1. The man was extremely concerned about the impact the criminal record would have on his employment, as well as his immigration status. We are going to file an application for post-conviction relief to vacate the conviction and, if that fails, an appeal is contemplated.

In accordance with N.J.S.A. 2C:12-1, an individual may be found guilty of "simple assault" in New Jersey under any of three scenarios. The first situation is where an individual attempts to cause or recklessly, knowingly, or purposely causes bodily injury to another. The second scenario is where bodily injury is negligently caused with a deadly weapon. The third and final setting is where an individual attempts to put another in fear of serious bodily injury through physical menace. Simple assault is a disorderly persons offense except where it is the result of a fight by mutual consent, in which case it is a petty disorderly persons offense.

The error made by the individual who retained our office today was in attempting to defend himself. He candidly had no business playing around where the potential ramifications were so significant; unless or until we vacate the simple assault conviction, he shall possess a criminal record. There is little doubt in my mind that this outcome would have been avoided had we represented him. I think that the situation represents a perfect example of how individuals make the mistake of believing that a charge like simple assault does not require an attorney by virtue of not thinking through about what the potential ramifications shall be if they are convicted. It really is not worth the risk in my view given the marginal expense of hiring NJ Simple Assault Lawyers. I am certain that this individual will not make the same mistake again.

 

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I have posted many times on the subject of Assault by Auto in DWI cases. Many individuals may think that these types of charges only effect "problem" individuals. This interpretation could not be more off base and, if you read the StarLedger recently, you would have witnessed this first hand. In this regard, a 55 year old woman from Westfield, who never had any problems with the law previously, struck a pedestrian in the parking lot of Lord & Taylor. It later turned out that this driver was driving while intoxicated.

The suspect in this case was originally issued several motor vehicle summonses. Further investigation apparently substantiated probable cause to issue indictable felony charges. As a result, the motorist was arrested this week on a charge of Aggravated Assault. This offense can be very serious and even includes a grade of Second Degree where injuries are serious enough. I would suspect that this charge is Third Degree based on the facts and the bail amount of $20,000, which is in the range of a Third Degree Aggravated Assault. The defendant is definitely in need of a solid Union County Aggravated Assault Attorney as incarceration could be a possibility depending on the seriousness of the injuries involved, the position of the victim on sentencing, and other factors. My real point is that someone from an affluent community, who is otherwise law abiding, can also be the subject of an Aggravated Assault. The poor judgment in getting into her car drunk could lead to severe penalties for this middle aged suspect.

 

 

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The Monmouth County Prosecutors Office and a Howell man resolved death by auto charges this week. The underage suspect struck a tree resulting in the death of a 16 year old passenger.  The defendant was allegedly operating his vehicle in a reckless manner at the time of the crash. The resolution included a plea to a downgraded offense of Second Degree Aggravated Assault from an original charge of vehicular homicide. 

In another auto death case, an Ocean County women who was previously a contestant on American Idol, was struck by an individual subsequently charged with a crime. The suspect, who was apprehended and arrested several days after the accident, has been charged with leaving the scene of a fatal accident. The criminal charges are now pending in the Superior Court in Toms River.

While charges of the nature involved in both these cases are extremely serious, this pedigree of offense tends to be susceptible to numerous defenses. This is particularly true where there is no evidence of drugs or alcohol, or where the evidence is prone to collateral attack. Experience in handling complicated issues of intoxication and proof thereof clearly comes in handy in the majority of these cases and one would assume that they could be of assistance in these cases.

 

 

 

 

 

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Almost 3 years ago, two sisters were killed in a collision with a state trooper.  The girls were running an errand and had the misfortune of being struck by a police cruiser allegedly involved in a chase. The officer admittedly did not have his siren or lights activated at the time of the accident.

The trooper was issued multiple motor vehicle tickets following the accident. He was later indicted for death by auto.  He is facing 5 to 10 years in prison if convicted of this offense. This controversial trial is set to begin in Cape May County.

The New Jersey Death by Auto Law is set forth at N.J.S.A. 2C:11-5. An individual is criminally culpable under this provision if he or she operates a vehicle "recklessly" and it results in the death of another. While these cases typically involve some element of intoxication, the law does not mandate involvement of foreign substance and reckless conduct of any origin will suffice. In order to be convicted of vehicular homicide, an individual must have been the operator of a vehicle, his or her operation must have resulted in the death of another, and must have been reckless. An individual must act without due regard for a high risk of injury to another to be reckless under N.J.S.A. 2C:11-5 and N.J.S.A. 39:4-96.

In this case, the state has a significant burden to satisfy if it is going to obtain a conviction. The truth is that cases like these are rarely prosecuted. I can only suspect that there is much more to this case than is offered in newspapers and other publications. We will keep you posted on the outcome. 
 

 

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A Lakewood New Jersey man has been charged with knowingly leaving the scene of a fatal accident. The charge stems from a Jackson car accident that resulted in the death of a motorist struck by the defendant. Bail has been set at $150,000.

In accordance with N.J.S.A. 2C:11-5.1, an individual is guilty of a second degree crime where he knowingly leaves the scene of a fatal accident. In order to determine whether such a violation has occurred, one must look to N.J.S.A. 39:4-129 which proscribes the circumstances in which someone is guilty of "leaving the scene".  In other words, the Title 39 motor vehicle statute defines what is necessary to be found guilty of leaving the scene and, when it results in a fatality, N.J.S.A. 2C:11-5.1 essentially sets forth the grading of the offense. This charge is generically referred to as a fatal hit and run.

The offense of knowingly leaving the scene of a fatal accident was a third degree offense up until recently. The law was amended to make this charge a Second Degree. What this means is that anyone charged under N.J.S.A. 2C:11-5.1 is now exposed to 5 to 10 years of prison, whereas  previously jail exposure was limited to 0 to 5 years. The enhancement also created a presumption of incarceration.  What this all means is that jail is highly likely for an individual like the suspect in this case in the event that they are convicted.

 

 

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The Star Ledger published a brief article Thursday regarding a Simple Assault committed by a Roselle High School student.  The incident offers an interesting example as to how a NJ Simple Assault Charge can be transformed into a much more serious offense of Aggravated Assault when the victim involves a member of a protected class of individuals.  A protected class not only includes police officers and other law enforcement, but other members of the public who the law deems necessary to protect for public policy reasons.  Let me explain this dynamic.

A simple assault is basically any form of unwanted or offensive "touching" of another which causes some element of bodily injury.  This can include momentary pain or discomfort, and need not be lasting or leave residual injury.  A simple assault is transformed under N.J.S.A. 2C:12-1(b) into an aggravated assault when one of the following is the victim: (1) a police officer; (2) fireman or first aid work acting in the course of their duties; (3) teachers, school officials and bus drivers; (4) DYFS workers; and (5) a judge. The escalation of a simple assault to an aggravated assault offense is significant as it triggers an indictable felony charge of the Fourth Degree or even Third Degree.  An individual is exposed to not only a lasting criminal record when this occurs but also up to 18 months in jail for a Fourth Degree conviction, and up to 5 years in jail for a Third Degree.

Our NJ Aggravated Assault Defense Attorneys do their very best to make sure that simple assaults like the one in Roselle never make it to a Superior Court like Union County Superior Court.  If there is no real injury and the defendant does not have a history of this type of behavior, we are typically successful in persuading the prosecutor to remand the case as a NJ Simple Assault charge. We will have to see if the Union County Prosecutor picks up this case as an Aggravated Assault.

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An aggravated assault may arise out of operation of a motor vehicle.  This pedigree of aggravated assault is commonly referred to as Assault by Auto.  Where the resulting injury is "serious", the Assault by Auto is a Second Degree.  Serious bodily injury is defined as injury that involves a substantial risk of death, permanent disfigurement, or loss of function of a bodily member or organ. Where an injury falls short and is only "significant", it gives rise to a Third Degree Aggravated Assault by Auto.

There are basically three (3) ways in which a person can be held accountable for assault by auto. First, where a motorist acts with the purpose or intent to collide with a victim, that is an assault by auto. The degree of a charge for an intentional collision hinges on the nature of the injury suffered by the victim (e.g. serious, significant, minor).  Second, when an individual acts recklessly (e.g. driving while intoxicated, reckless driving, extreme speeding, etc.) and this results in injury to another, that is also an assault by auto. Whether this conduct is a Second Degree, Third Degree or even Fourth Degree Aggravated Assault, again depends on the extent of the resulting injury. Third, an assault by auto arises when an individual causes bodily injury while fleeing or elude police contrary to N.J.S.A. 2C:29-2(b), or while joyriding in violation of N.J.S.A. 2C:20-10(c). This variety of assault by auto is also a Second Degree crime.

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I never get over individuals who snap and decide to use their car as a weapon.  This is precisely what was reported by the Home News recently about a Plainfield man.  The assailant swerved into his girlfriend's vehicle on Route 22, sending the car into a spin.  A police officer happened to be in the area and witnessed the incident.  The rogue driver has been charged with Aggravated Assault and Reckless Driving.

N.J.S.A. 2C:12-1(b), the Aggravated Assault Statute, defines this offense to include attempting to cause serious bodily injury...under circumstances manifesting extreme indifference to the value of human life. A second degree aggravated assault carries up to ten years in jail. There is also a charge of Reckless Driving under N.J.S.A. 39:4-96.  Although this charge is clearly secondary, a conviction can nevertheless give rise to license suspension and up to six months in jail.

The accused in this case is going to have a difficult time defending this matter by virtue of numerous factors including his poor luck; the arresting officer apparently witnessed the entire encounter.  The focus will undoubtedly have to be on the nature of the intended injuries, his state of mind, and other potential avenues to establish that this is a third degree aggravated assault as opposed to a second degree.  Provided the accused has no prior criminal record, a third degree conviction and/or plea should allow him to avoid jail time.

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The New Jersey Legislature recently approved stiffer penalties for individuals found guilty of road rage.  Individuals were previously exposed to a fourth degree offense and up to 18 months in jail.  The amendment now makes it a third degree offense and carries up to 5 years in jail.  The bill loosely defines "road rage" as including any actions or maneuvers of aggression, akin to harassment with a car (e.g. tailgating, driving at an excessive speed, weaving through traffic, etc.).

The legislative revision was contained in a bill captioned "Jessica's Law", named after a young lady seriously injured as a result of a road rage incident.  Jessica was injured when an individual who believed he was cut off weaved through traffic, causing an accident. 

Over the last 15 to 20 years as a defense lawyer, I have learned that there are simply some people out there who could be described as unreasonable, irrational, and even unstable.  Many have seen these individuals on the road waving their hands, yelling or even driving aggressively for seemingly nothing.  While I certainly agree with the revision of the statute, I have a hard time thinking that it is going to deter the type of individual who engages in "road rage". 

 

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The 2008 Christmas holiday resulted in drunk driving fatalities and serious injuries.  Early Sunday morning, a Glassboro man slammed his vehicle into the back of a dumb truck resulting in the death of his passenger.  Chemical tests allegedly revealed a blood alcohol concentration over the legal limit, resulting in vehicular homicide charges being filed filed.

On Tuesday, another alcohol related accident occurred in Kearny.  The collision resulted in serious injuries and involved a motorist with a BAC of .19, over twice the legal limit.  Assault by Auto charges have been filed.

The holiday season is always a festive time involving alcohol. Unfortunately, this seems to result in DWI related fatalities every year.  If the toxicology stands up in cases like these, the defendants have serious jail exposure.

 

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On November 18, 2008, the Appellate Division issued its decision in State v. Stull.  The case involved the appeal of a Simple Assault conviction under N.J.S.A. 2C:12-1.  The defendant was a Hamilton police officer who had become involved in a physical altercation at a high school sporting event.  Apparently, the defendant's wife and another women were in an argument and, when he separated the two, the son of the women involved, got involved with the defendant.  It culminated in defendant placing the boy in a headlock for a short period.  No blows were exchanged.

The officer ended up losing his job and pension as a result of the conviction and appealed. The basis for the appeal was the fact that Simple Assault had not been established as there was no "bodily injury" to the boy as required under N.J.S.A. 2C:12-1.  The Appellate Division was not persuaded by the argument, concluding that a headlock is enough to cause "bodily injury" insofar as all this term contemplates is some element of pain or physical discomfort.

The lesson to be learned from this decision is told-fold in my mind.  First, it illustrates just how serious the repercussions of a simple assault conviction can be in terms of employment.  It can limit an individuals ability to get a job and even result in discharge. Second, the decision reinforces the fact that there are rarely "do overs" once there is a bad result in a municipal court case.  There typically is only one bite at the apple so an experienced defense attorney is an absolute necessity for anyone viewing a simple assault offense seriously. 

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A disorderly persons offense (DP) in New Jersey is a petty offense that is handled in municipal court. These types of offenses include simple assault and harassment. In the recent case of Housing and Redev. Auth. of Twp. of Franklin v. Miller, A-2463-06, the court held that a tenant may be evicted from federally subsidized public housing upon conviction for a disorderly persons offense. The court held that a statute allowing eviction for "criminal activity" (known as the one-strike law) should be read broadly, consistent with its purpose of making public housing safe. Therefore, Judge Donald Coburn's panel found no intention by Congress to exclude petty offenses from the "criminal activity" that justifies eviction. A Somerset County Superior Court judge found that the housing authority was within its rights to terminate the lease under 42 U.S.C.A. 1437d(1)(6), which requires that leases of federally subsidized housing provide that "any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug related criminal activity on or off such premises, engaged in by a public household tenant, any member of the person's household, or any guest or other person under the tenant's control, shall be good cause for termination of the tenancy." On appeal, the judges agreed that a DP offense was included in criminal activity sufficient to warrant eviction.

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