Articles Posted in Assault

In New Jersey, if a criminal defendant lacks the ability to understand the crimes the State alleges the defendant committed or the consequences he or she faces if convicted, the defendant may be held unfit to stand trial. When a defendant’s competency is questioned the State must prove numerous factors for the defendant to be found competent, as discussed in a recent New Jersey case in which the defendant was charged with kidnapping and attempted sexual assault. If you are charged with kidnapping or a crime of violence, it is wise to meet with a knowledgeable New Jersey criminal defense attorney to analyze your potential defenses.

The Alleged Crime

It is reported that the defendant was charged with kidnapping and attempted aggravated sexual assault. The defendant had a competency hearing, after which he was found competent to stand trial. Shortly prior to trial, however, he struck his head and began exhibiting concerning behavior. The defendant’s attorney requested a second competency hearing, but the request was denied. A jury convicted the defendant, after which he appealed arguing, in part, that the court erred in denying the second competency hearing.

Competency to Withstand Trial Under New Jersey Law

Under New Jersey law, if a defendant lacks the capacity to understand criminal proceedings against the person, or to assist in his or her own defense, the defendant cannot be tried, convicted, or sentenced, during the time the incapacity exists. As such, a competency hearing must be held when evidence is produced that raises a bona fide question as to a defendant’s competence.

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The potential penalties upon conviction for Simple Assault include up to six months in jail and/or probation, a fine of up to $1,000, a Victims of Crime Compensation Bureau Assessment of $50, a SNA of $75 and court costs. A domestic violence assessment also applies if the Simple Assault arises out of an incident of domestic violence.

The penalties for Aggravated Assault depend on the grade of offense charged. A Fourth Degree Aggravated Assault involves 0-18 months in jail. A Third Degree Aggravated Assault carries a maximum of 5 years of incarceration. And a Second Degree Aggravated Assault triggers 5 to 10 years of jail. The parole ineligibility under the No Early Release Act (“NERA”) also applies to any prison sentence imposed for aggravated assault. NERA mandates that an individual serve 85% of his term of imprisonment before being eligible for parole. The related maximum monetary penalties are $10,000, $15,000, and $150,000, respectively.

The New Jersey Harassment Law is set forth at N.J.S.A. 2C:33-4. This statute provides that a person is guilty of a petty disorderly persons offense “harassment” if he:

  1. Makes or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm;
  2. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

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.

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.

An interesting issue arises when an assault by auto offense is based on drunk driving (“DWI”). When this is the case, the DWI merges into the assault by auto provided the sole basis for recklessness is intoxication. A defendant is nevertheless subject to the mandatory license suspension and penalties of N.J.S.A. 39:4-50. 
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