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? (N.J.S.A. 2C:12-1)
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.
How to Defend Assault Charges 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 the 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.
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 an 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.
Juveniles and Assault Charges in New Jersey
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.
Can A Diversionary Program Avoid an Assault Conviction in NJ?
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.
Can an Assault Conviction Be Expunged?
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.
Frequently Asked Questions About Assault in NJ
Who Should You 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