Assault in New Jersey – N.J.S.A. 2C:12-1

Last updated: Sep 28, 2023

Assault is considered a violent crime and having this kind of offense on one’s criminal record could be devastating. Not only will a person have to reveal it to prospective employers, but he/she may also be denied a job because of it. Some colleges and universities will even count this as a strike against an applicant being considered for admission. Accordingly, it is crucial for one to understand what a criminal assault charge involves and the penalties associated with it.

What is Assault?

Assault is the intentional creation of a reasonable apprehension of imminent bodily harm. However, assault can also be defined as an attempt to commit battery. Battery is the unlawful application of force to another person that results in bodily injury or offensive touching. Typically, smashing a beer bottle and pointing it at a person in order to harm him with it will be considered assault. There are several different kinds of assault in New Jersey. The primary ones are:

Simple Assault [N.J.S.A. 2C:12-1(a)]: This is when a person knowingly or negligently causes bodily harm to a person or puts him/her in reasonable fear of bodily harm.

Simple assault is the least severe assault charge in NJ.
If convicted, a person can face up to 6 months in jail and be subjected to a fine of up to $1,000 (i.e. a disorderly persons offense).

Aggravated Assault [N.J.S.A. 2C:12-1(b)]: A person who commits simple assault while exhibiting an extreme indifference to the value of human life can be guilty of aggravated assault.

One can also be charged with aggravated assault if one commits simple assault with a deadly weapon.
Even pointing an unloaded firearm at a person (under the right circumstances) can result in a charge of aggravated assault.
Moreover, assaulting a police officer, firefighter, first-aid operator, or school bus driver acting in the scope of his/her duties is automatically considered aggravated assault in NJ.
There are several degrees of aggravated assault, the most severe of which can result in up to 10 years in jail.

Assault by Automobile [N.J.S.A. 2C:12-1(c)]: A driver who harms another person as a result of reckless behavior can be charged with assault by auto in New Jersey.

The severity of the charge will depend on several factors, including the seriousness of the injuries sustained by the victim(s).
Typically, assault by auto is a fourth-degree crime, but if there is a fair amount of bodily harm involved, it might be elevated to a third- or second-degree crime. Driving while intoxicated or committing assault by auto in a school zone can also increase the level of charge.

police arresting person up against a truck

What Are the Penalties for Assault in New Jersey?

Assault is a broad term that is broken down into many acts that constitute different degrees of assault. The penalty for the act depends on what degree of crime the law assigns to it. This section outlines the type of offenses (second degree, third degree, etc.), the penalties for them, and examples of assault that would qualify as these offenses:

Disorderly Person’s Offense/ Petty Disorderly Person’s Offense

Disorderly Person’s Offense can carry a jail term of up to 6 months and a fine up to $1,000
Petty offense can carry a jail term of up to 30 days and a fine up to $500
A simple assault is viewed as a disorderly person’s offense
A fight entered into by mutual consent will be charged as a petty offense

Crime of the Second Degree

Punishable by prison term between 10 – 20 years and a fine up to $150,000

Examples include the following:

If a person purposely or with extreme recklessness causes serious bodily injury to another
If a person recklessly starts a fire, and emergency personnel (i.e., a firefighter) sustains serious bodily injury in the process of putting it out
If person knowingly obstructs the breathing of a victim of domestic abuse

Crime of the Third Degree

Punishable by a prison term between 5-10 years and a fine up to $15,000

Examples include the following:

If aggravated assault on a police officer, firefighter, or other public employee resulted in bodily harm
If a person knowingly or recklessly sets a fire or explosion that resulted in bodily injury to emergency personnel who were engaged in fire suppression activities
If a person attempts to, or actually causes, bodily harm to a victim of domestic abuse
Ifa person attempts to cause injury with a deadly weapon, or if they point a deadly weapon at a police officer

Crime of the Fourth Degree

Punishable by prison term between 3-5 years and a fine up to $10,000

Examples include the following:

If a person recklessly causes bodily injury with a deadly weapon or points a firearm at another person, regardless of whether they believed it was loaded or not
If a person commits a simple assault towards a police officer, firefighter, first responder, or other public employees who were engaged in the scope of their duties
Assault by automobile

Consequences for a First Offense

A juvenile charged with assault in New Jersey will most often be tried in NJ’s Family Court system rather than criminal court. The penalties that a juvenile faces for various types of assault will be different from those faced by adults, but can still include incarceration (in a juvenile detention facility), as well as probation, community service, and counseling. Judges in Family Court take into consideration the defendant’s age, family situation, psychological and medical needs, and other factors before issuing a sentence. Still, depending on the severity of the charges and other facts, a juvenile can suffer serious long-lasting consequences upon conviction. A skilled attorney can argue on the child’s behalf to either ensure he/she is not convicted or to reduce the charge and subsequent consequences.

What if I’ve Been Charged With Assault in New Jersey?

Presenting a strong defense to assault charges in New Jersey will depend on the type of assault one has been charged with and the circumstances of the case. In some cases, it may be viable to use a claim of self-defense to get an assault charge dropped. However, the facts will have to support this and it is important to ensure that the prosecutor does not have solid evidence contradicting the claim. In some cases, it may be possible to cast doubt that the defendant was present for and/or participated in an alleged assault with an alibi.

Other strategies may include submitting evidence showing a stop, search, or arrest was improper or illegal. In some cases, if witness testimony is unavailable, inconsistent, or recanted, this could result in a dismissal of the charges. In many cases, the most effective defense may be to negotiate with prosecutors to reduce the charge to a lesser offense, preferably one that will not result in jail time and/or a criminal record.

A skilled attorney can assess one’s case to determine if it is best to take a reduced charge or go to trial.

Contact an Attorney

To put yourself in the best position to defend against assault charges, it is important to contact an attorney without delay. Not only will they be able to defend you in a court of law if necessary, they will also know how to negotiate with prosecutors and, depending on the case, be able to get charges reduced.

Enrolling In NJ Diversionary Programs

New Jersey offers diversionary programs to eligible individuals as an alternative to conviction and possible jail time. Such programs, including Pre-Trial Intervention and Conditional Discharge, are limited to those who meet certain requirements and not all who apply will be accepted. Those who are enrolled in a diversionary program may be required to attend counseling, undergo drug testing, meet with a probation officer, or perform community service. The exact nature of the program will be decided by the judge. If the defendant successfully completes the program, the charges against him/her will be dropped. A person charged with assault should contact an attorney to find out if he/she is eligible for a diversionary program. An attorney can help present the facts that are most likely to result in a person being accepted.

Expunge Assault

If one is eligible for an expungement in New Jersey, then an assault charge can be cleared from one’s criminal record. A person can file for an expungement if he/she has no more than 4 disorderly persons convictions or 1 indictable offense and 3 disorderly persons convictions on his/her record. Thus, if a person was convicted of two separate instances of third-degree aggravated assault, he/she will not be able to have the record cleared. However, an exception exists if two indictable offenses are charged and sentenced as part of the same event or series of events.

The application process for expungements in New Jersey is complicated and a single mistake can result in a denial. In addition, some people’s applications can be challenged by the local District Attorney, which can result in a hearing before a judge. These two facts make it critical that a person hires an attorney to help with the expungement process. An attorney can ensure that the application is error-free and presents the facts in the best possible light, as well as appear in court to persuade the judge to grant the expungement over the prosecutor’s objections.

Case Law Analysis

State v. Diaz 190 N.J. Super. 639

Attorneys representing a defendant charged with Aggravated Assault successfully argued that the pointing of an unloaded pellet gun should be downgraded to Simple Assault in State v. Diaz 190 N.J. Super. 639. The court agreed that the statutes for Simple Assault and Aggravated Assault are structurally parallel, with the main difference being that an instance of Aggravated Assault must show indifference to the value of human life. The statute for Aggravated Assault also states that a person can be charged for the offense for pointing a gun at another person “whether or not the actor believes it to be loaded.” Attorneys for the defendant insisted that this was meant to prevent a person from avoiding an Aggravated Assault charge by claiming he or she did not know the weapon was loaded. However, in the case of Diaz, the assailant’s weapon was known to be unloaded and lacked the air canister needed to fire the requisite ammunition. Therefore, the judge granted the downgrade of the offense to Simple Assault.

State v. Bill, 194 N.J. Super. 192

However, Diaz’s approach was not always followed by future cases. In State v. Bill, 194 N.J. Super. 192, the defendant also pointed an unloaded firearm at another person and was accused of Aggravated Assault. Although the trial court reduced the Aggravated Assault to Simple Assault, the appellate court disapproved of the downgrade and still confirmed it as Aggravated Assault. The court emphasized the legislative intent was to “punish crime committed with firearms more severely than crimes committed without firearms”. In this sense, both loaded and unloaded firearms should be considered when ascertaining guilt for pointing a firearm at another. Therefore, the court challenged Diaz’s opinion that once the defendant knowingly pointed his firearm at another person under circumstances manifesting extreme indifference to the value of human life, he had committed Aggravated Assault. Although both Diaz and Bill agreed that the defendant can be convicted without knowing whether the firearm was loaded, Diaz focused more on the “unloaded” status of the firearm while Bill focused on the firearm itself.

State ex rel. S.B., 333 N.J. Super. 236

In State ex rel. S.B., 333 N.J. Super. 236, the juvenile defendant was found guilty for offenses that would constitute Aggravated Assault on two teachers if committed as an adult. However, on appeal, the appellate court reversed it in the second instance, where the defendant mistakenly struck a teacher when trying to kick another student. As such, the defendant was only convicted of an offense that would constitute Simple Assault in that instance.

State v. Cannarella, 376 N.J. Super. 16

In some circumstances, Simple Assault can be elevated by the Code of Criminal Justice to Aggravated Assault. For example, according to the provision N.J.S.A. 2C:12–1b(5)(d), a person is guilty of Aggravated Assault if he commits a Simple Assault on “any school board member, school administrator, teacher…...” In State v. Cannarella, 376 N.J. Super. 16, the defendant was charged with Aggravated Assault for purposely or knowingly causing bodily injury to a teacher at a private school while acting in the performance of his duty. The defendant argued that the enhancing statute could not apply because the victim was a teacher at a private school. To decide whether an offense of Simple Assault can be enhanced to Aggravated Assault when a victim is a school teacher employed by a private school, the court interpreted the statute from both the history and structure: first, the Legislature used the phrase “board of education” to refer solely to public schools; second, when the rule was meant to apply to private schools, the phrase used was “public or private”; and third, the related provisions of subsection (5)(d) almost exclusively described employees in the public service, and the situation which the Legislature was addressing was violence in public schools rather than violence in schools in general. Therefore, the court agreed with the defendant that enhancing the offense of Simple Assault to Aggravated Assault when the victim was a school teacher employed by a school board did not extend to teachers in private schools.

Who Should I Contact?

If you or a loved one was recently charged with criminal assault, contact the attorneys at Rosenblum Law today. Our skilled criminal defense attorneys have helped many people in similar situations. Our attorneys can defend your constitutional rights and do everything possible to have your criminal assault charges dismissed or reduced to a less serious offense. E-mail or call us today at 888-815-3649

Frequently Asked Questions

Does someone have to be injured in order to be charged with assault?

No. A person can be charged with simple assault merely for instilling fear of bodily harm upon another, such as by waving a broken bottle and making a threat. As mentioned above, a person can also be charged with either simple or aggravated assault in some cases for aiming an unloaded gun at another.

Is slapping someone considered assault?

Slapping another person is a form of battery but does not rise to the level of assault unless the potential for serious harm can be proven in court.

What is the statute of limitations for assault in NJ?

The statute of limitations (how long after the alleged crime took place that prosecutors have to file charges) for assault is 1 year for a disorderly persons offense and 5 years for an indictable offense.

Is it assault if both parties consent to fight?

Simple assault can be charged as a petty disorderly persons offense rather than a disorderly persons offense when both parties agree to a fight. The penalty upon conviction is up to 30 days in jail.

Is assault the same as battery?

Battery in NJ requires one to make physical contact, whereas assault only requires that a person believe harm is imminent. A person who commits battery in New Jersey will likely be charged with aggravated assault.

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Last updated: Sep 28, 2023

Adam H. Rosenblum

About The Author

Adam is the founding attorney and principal of Rosenblum Law. With more than two decades of legal experience in numerous areas of law practice, his primary focus is law firm management and business development.

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