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.
