Violent Crimes

Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. 2C:12-1 Assault. 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:39-1f., 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 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 school board or any school bus driver employed by an operator under contract to a 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 (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 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). Amended 1979, c.178, s.22; 1981, c.290, s.14; 1983, c.101; 1985, c.97, s.2; 1985, c.444; 1990, c.87, s.1; 1991, c.237, s.2; 1991, c.341, s.2; 1993, c.219, s.2; 1995, c.6, s.1; 1995, c.181; 1995, c.211, s.1; 1995, c.307, s.2; 1997, c.42; 1997, c.119; 1999, c.77; 1999, c.185, s.2; 1999, c.281; 1999, c.381; 2001, c.215; 2001, c.443, s.2. 2C:12-1.1. Knowingly leaving scene of motor vehicle accident resulting in serious bodily injury, fourth degree crime; sentencing 2. A motor vehicle operator who knows he is involved in an accident and knowingly leaves the scene of that accident under circumstances that violate the provisions of R.S.39:4-129 shall be guilty of a crime of the fourth degree if the accident results in serious bodily injury to another person. If the evidence so warrants, nothing in this section shall be deemed to preclude an indictment and conviction for aggravated assault or assault by auto under the provisions of N.J.S.2C:12-1. Notwithstanding the provisions of N.J.S.2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for aggravated assault or assault by auto under the provisions of N.J.S.2C:12-1 and a separate sentence shall be imposed upon each conviction. Notwithstanding the provisions of N.J.S.2C:44-5 or any other provisions of law, whenever in the case of such multiple convictions the court imposes multiple sentences of imprisonment for more than one offense, those sentences shall run consecutively. For the purposes of this section, neither knowledge of the serious bodily injury nor knowledge of the violation are elements of the offense and it shall not be a defense that the driver of the motor vehicle was unaware of the serious bodily injury or provisions of R.S.39:4-129. L.1997,c.111,s.2. In an indictable criminal case, the Judge will read the following Instructions and Law to the Jury: SIMPLE ASSAULT-LESSER INCLUDED1 (N.J.S.A. 2C:12-1 a. (1) The defendant is charged in the indictment with aggravated assault. If you find the defendant not guilty of aggravated assault. You should consider the lesser included offense of simple assault. The portion of the statute dealing with simple assault reads in pertinent part as follows: A person is guilty of assault if he attempts to cause or purposely, knowingly or recklessly causes bodily injury to another. In order for you to find the defendant guilty of this lesser included offense, the State must prove the essential elements of this offense beyond a reasonable doubt. Those elements are as follows: 1. That the defendant attempted to cause or actually caused bodily injury to another. 2. That the defendant acted purposely, or knowingly or recklessly. Bodily injury is defined as physical pain, illness or any impairment of the physical condition. This is different that the "serious bodily injury" I defined for you in regard to aggravated assault. NOTE: Charge as required (depending on the applicable Aggravated Assault Charge): "Attempt"2 "Purposely, Knowingly and/or Recklessly"3 In conclusion, no defendant may be found guilty of an offense, unless the State has proven each element of the offense beyond a reasonable doubt. If the State has failed to prove any element beyond a reasonable doubt, you must find the defendant not guilty. On the other hand, if the State has proven the crime charged and each of its elements beyond a a reasonable doubt, you must find the defendant guilty.4 1 This charge is intended for use in connection with one of the model charges on Aggravated Assault, N.J.S.A. 2C:12-1b, only. Harassment is a lesser-included offense of Simple Assault. State v. Berka, 211 N.J. Super. 717, 721 (App. Div. 1986). Simple Assault is not a lesser-included of Sexual Assault or Criminal Sexual Contact. State v. Queen, 221 N.J. Super. 601 (App. Div. 1988). 2 The statute includes "Attempts to Cause." If facts require, charge Attempt along with this charge. See N.J.S.A. 2C:5-1a. 3 See Model Charge on Aggravated Assault-Serious Bodily Injury, N.J.S.A. 2C:12-1b(1). 4 N.J.S.A. 2C:1-13a. See also State v. Ragland, 105 N.J. 189 (1986). AGGRAVATED ASSAULT - SIGNIFICANT BODILY INJURY1 N.J.S.A. 2C:12-1b(7) In Count of the indictment, the defendant(s) is (are) charged with the crime of aggravated assault in that he/she/they allegedly on in the (Date) (Municipality) (READ PERTINENT LANGUAGE OF INDICTMENT) The defendant(s) is (are) accused of violating a section of our state statutes that reads as follows: A person is guilty of aggravated assault if he. . . . (a) ttempts 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. Under this statute, the defendant(s) can be found guilty if he/she/they EITHER caused significant bodily injury to another OR attempted to cause significant bodily injury to another. To find the defendant(s) guilty of aggravated assault for causing significant bodily injury to another, the State must prove beyond a reasonable doubt each of the following elements: 1. That the defendant(s) caused significant bodily injury to another; and 2. That the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life. The first element that the State must prove beyond a reasonable doubt is that the defendant(s) caused significant bodily injury to another. Significant bodily injury means bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses. As you know, the five senses are sight, hearing, taste, touch and smell. The second element that the State must prove beyond a reasonable doubt is that the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life. A person acts purposely with respect to the result of his/her conduct if it is his/her conscious object to cause such a result. A person acts purposely if he/she acts with design, with a specific intent, with a particular object or purpose, or if he/she means to do what he/she does (e.g., "I did it on purpose"). A person acts knowingly with respect to the result of his/her conduct if he/she is aware that it is practically certain that his/her conduct will cause such a result. A person acts recklessly with respect to the result of his/her conduct if he/she consciously disregards a substantial and unjustifiable risk that the result will occur from his/her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to the actor, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actors's situation. One is said to act recklessly if one acts with recklessness, with scorn for the consequences, heedlessly, fool-hardily. The phrase "under circumstances manifesting extreme indifference to the value of human life" does not focus on the state of mind of the actor, but rather on the circumstances under whichyou find that he/she acted. If, in light of all the evidence, you find that the conduct of the defendant(s) resulted in a probability as opposed to a mere possibility of significant bodily injury, then you may find that he/she/they acted under circumstances manifesting extreme indifference to the value of human life.2 In determining whether the defendant(s) acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life, you may consider the nature of the act(s) itself (themselves) and the severity of the resulting injury (injuries). (NOTE: When the actual victim is one other than the intended victim, the jury should be instructed that it is immaterial that the actual victim was not the intended victim). If you find that the State has proved each element beyond a reasonable doubt, then you must find the defendant(s) guilty. If you find that the State has failed to prove any element beyond a reasonable doubt, then you must find the defendant(s) not guilty of the charge of aggravated assault in that he/she/they caused significant bodily injury to another. As I previously instructed you, the defendant(s) can be found guilty if he/she/they EITHER caused significant bodily injury to another OR attempted to cause significant bodily injury to another. To find the defendant(s) guilty of attempting to cause significant bodily injury to another, the State must prove the following beyond a reasonable doubt: That the defendant(s) purposely3 attempted to cause significant bodily injury to another. If you find beyond a reasonable doubt that the defendant(s) attempted to cause significant bodily injury, it does not matter whether such injury actually resulted. The law provides that a person is guilty of attempt if, acting purposefully, he/she: (Select appropriate section) 1. Engaged in conduct that would constitute the offense if the attendant circumstances were as a reasonable person would believe them to be; (or) 2. Did (or omitted to do) anything with the purpose of causing significant bodily injury to another without further conduct on his/her part. This means that the defendant(s) did something designed to cause significant bodily injury without having to take any further action. (or) 3. Did (or omitted to do) anything that, under the circumstances as a reasonable personwould believe them to be, was an act (or omission) constituting a substantial step in a course of conduct planned to culminate in his/her commission of the crime. The step taken must be one that is strongly corroborative of the defendant's criminal purpose. The accused must be shown to have had a firmness of criminal purpose in light of the step(s) he/she had already taken. These preparatory steps must be substantial and not just very remote preparatory acts.4 Significant bodily injury means bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses. As you know, the five senses are sight, hearing, taste, touch and smell. A person acts purposely with respect to the result of his/her conduct if it is his/her conscious object to cause such a result. A person acts purposely if he/she acts with design, with a specific intent, with a particular object or purpose, or if the he/she means to do what he/she does (e.g., "I did it on purpose"). If you find that the State has proved beyond a reasonable doubt that the defendant(s) attempted to cause significant bodily injury to another, the you must find the defendant(s) guilty.5 If you find that the State has failed to prove beyond a reasonable doubt that the defendant(s) attempted to cause significant bodily injury to another, then you must find the defendant(s) notguilty.6 1 N.J.S.A. 2C:12-1b(7) took effect on January 5, 1996. 2 In State v. Curtis, 195 N.J.Super. 354, 364-365 (App. Div. 1984), certif. den., 99 N.J. 212 (1984), the Court found, in the context of aggravated manslaughter, that the difference between recklessness under circumstances manifesting extreme indifference to human life and mere recklessness is the difference between the probability as opposed to the possibility that a certain result will occur. The Supreme Court endorsed Curtis in State v. Breakiron, 108 N.J. 591, 605 (1987). The caselaw has applied the Curtis probability standard to the aggravated-assault statute. State v. Scher, 278 N.J. Super. 249, 272 (App. Div. 1994), certif. den., 140 N.J. 276 (1995); State v. Oriole, 243 N.J. Super. 688, 693 (Law Div. 1990). Please note that in the aggravated-assault statute the Legislature has used the term "extreme indifference to the value of human life," while the aggravated-manslaughter statute speaks in terms of "extreme indifference to human life." Therefore, the indifference referred to in the aggravated-assault statute would appear not to relate to whether the victim lives or dies but rather to the value of the victim's life. 3 When a person actually causes significant bodily injury, it does not matter whether his/her mental state is purposeful, knowing or reckless (under circumstances manifesting extreme indifference to the value of human life). When, however, the person attempts to cause, but does not cause, significant bodily injury, he/she must act purposefully. Cf. State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986). 4 State v. Fornino, 223 N.J. Super. 531, 538 (App. Div. 1988), certif. den., 111 N.J. 570 (1988), cert. den. 488 U.S. 859, 109 S.Ct. 152, 102 L.Ed. 2d 123 (1988). 5 Where appropriate, renunciation should be charged. N.J.S.A. 2C:5-1(d). 6 In third degree aggravated assault cases involving the use of a deadly weapon, it may be appropriate to instruct the jury on the following lesser offenses: fourth degree aggravated assault, N.J.S.A. 2C:12-1b(3); and simple assault, N.J.S.A. 2C:12-1a(1) and (2). Cf. State v. Villar, 292 N.J. Super. 320, 326-330 (App. Div. 1996), rev'd. o.g., 150 N.J. 503, 517 n. 4 (1997). See also, State v. Sloane, 111 N.J. 293, 301 (1988). These may be charged as lesser offenses even though fourth degree aggravated assault and a(2) disorderly persons simple assault contain an element (a deadly weapon) that is not an element of third degree aggravated assault. Cf. State v. Villar, supra; State v. Sloane, supra. When these lesser offenses are to be charged, the trial court and counsel should construct a sequence of the lesser offenses to be charged. State v. Villar, 150 N.J. at 517 n. 4.