Thursday, February 7, 2019

2C :12-1 Assault. revised in 2017

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 subsection f. of N.J.S.2C:39-1, 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 paragraph (1), (2) or (3) of subsection a. 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 public or nonpublic school or 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 public or nonpublic school or school board or any school bus driver employed by an operator under contract to a public or nonpublic school or 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 Child Protection and Permanency 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

   (h) Any Department of Corrections employee, county corrections officer, juvenile corrections officer, State juvenile facility employee, juvenile detention staff member, juvenile detention officer, probation officer or any sheriff, undersheriff, or sheriff's officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a Department of Corrections employee, county corrections officer, juvenile corrections officer, State juvenile facility employee, juvenile detention staff member, juvenile detention officer, probation officer, sheriff, undersheriff, or sheriff's officer; or

   (i) Any employee, including any person employed under contract, of a utility company as defined in section 2 of P.L.1971, c.224 (C.2A:42-86) or a cable television company subject to the provisions of the "Cable Television Act," P.L.1972, c.186 (C.48:5A-1 et seq.) while clearly identifiable as being engaged in the performance of his duties in regard to connecting, disconnecting or repairing or attempting to connect, disconnect or repair any gas, electric or water utility, or cable television or telecommunication service; or

   (j) Any health care worker employed by a licensed health care facility to provide direct patient care, any health care professional licensed or otherwise authorized pursuant to Title 26 or Title 45 of the Revised Statutes to practice a health care profession, except a direct care worker at a State or county psychiatric hospital or State developmental center or veterans' memorial home, while clearly identifiable as being engaged in the duties of providing direct patient care or practicing the health care profession; or

   (k) Any direct care worker at a State or county psychiatric hospital or State developmental center or veterans' memorial home, while clearly identifiable as being engaged in the duties of providing direct patient care or practicing the health care profession, provided that the actor is not a patient or resident at the facility who is classified by the facility as having a mental illness or developmental disability; 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 paragraph 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 paragraph, "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 v. 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; or

   (12) Attempts to cause significant bodily injury or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life, recklessly causes significant bodily injury to a person who, with respect to the actor, meets the definition of a victim of domestic violence, as defined in subsection d. of section 3 of P.L.1991, c.261 (C.2C:25-19); or

   (13) Knowingly or, under circumstances manifesting extreme indifference to the value of human life, recklessly obstructs the breathing or blood circulation of a person who, with respect to the actor, meets the definition of a victim of domestic violence, as defined in subsection d. of section 3 of P.L.1991, c.261 (C.2C:25-19), by applying pressure on the throat or neck or blocking the nose or mouth of such person, thereby causing or attempting to cause bodily injury.

   Aggravated assault under paragraphs (1) and (6) of subsection b. of this section is a crime of the second degree; under paragraphs (2), (7), (9) and (10) of subsection b. of this section is a crime of the third degree; under paragraphs (3) and (4) of subsection b. of this section is a crime of the fourth degree; and under paragraph (5) of subsection b. of this section 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 paragraph (8) of subsection b. of this section 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 paragraph (11) of subsection b. of this section is a crime of the third degree.  Aggravated assault under paragraph (12) or (13) of subsection b. of this section is a crime of the third degree but the presumption of non-imprisonment set forth in subsection e. of N.J.S.2C:44-1 for a first offense of a crime of the third degree shall not apply.

   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. Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L.2003, c.310 (C.39:4-97.3) may give rise to an inference that the defendant was driving recklessly.

   (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 the 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 subsection.

   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.

   (4) Assault by auto or vessel is a crime of the third degree if the person purposely drives a vehicle in an aggressive manner directed at another vehicle and serious bodily injury results and is a crime of the fourth degree if the person purposely drives a vehicle in an aggressive manner directed at another vehicle and bodily injury results.  For purposes of this paragraph, "driving a vehicle in an aggressive manner" shall include, but is not limited to, unexpectedly altering the speed of the vehicle, making improper or erratic traffic lane changes, disregarding traffic control devices, failing to yield the right of way, or following another vehicle too closely.

   As used in this subsection, "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).

   f.   A person who commits a simple assault as defined in paragraph (1), (2) or (3) of subsection a. of this section in the presence of a child under 16 years of age at a school or community sponsored youth sports event is guilty of a crime of the fourth degree.  The defendant shall be strictly liable upon proof that the offense occurred, in fact, in the presence of a child under 16 years of age.  It shall not be a defense that the defendant did not know that the child was present or reasonably believed that the child was 16 years of age or older.  The provisions of this subsection shall not be construed to create any liability on the part of a participant in a youth sports event or to abrogate any immunity or defense available to a participant in a youth sports event.  As used in this act, "school or community sponsored youth sports event" means a competition, practice or instructional event involving one or more interscholastic sports teams or youth sports teams organized pursuant to a nonprofit or similar charter or which are member teams in a youth league organized by or affiliated with a county or municipal recreation department and shall not include collegiate, semi-professional or professional sporting events.

   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; 2002, c.53; 2003, c.218; 2005, c.2; 2006, c.78, s.2; 2010, c.109; 2012, c.3; 2012, c.16, s.6; 2012, c.22, s.2; 2015, c.98, s.1; 2015, c.100, s.1; 2017, c.240.

Model Jury Charge AGGRAVATED ASSAULT – SIGNIFICANT BODILY INJURY TO A VICTIM OF DOMESTIC VIOLENCE

Model Jury Charge AGGRAVATED ASSAULT – SIGNIFICANT BODILY INJURY 
TO A VICTIM OF DOMESTIC VIOLENCE
N.J.S.A.2C:12-1b(12)[1]

            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 or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life, recklessly causes significant bodily injury to a person who, with respect to the actor, meets the definition of a victim of domestic violence . . . .

OPTION ONE[2]
(Causing Significant Bodily Injury)

            To find the defendant(s) guilty of aggravated assault for causing significant bodily injury to a person who, with respect to the actor, meets the definition of a victim of domestic violence, the State must prove beyond a reasonable doubt each of the following elements:
            1.         That the defendant(s) caused significant bodily injury to [name of person]; 

            2.         That the defendant(s) acted purposely or knowingly or under circumstances                                  manifesting extreme indifference to the value of human life, recklessly; and
3.         That [name of person] meets the definition of a victim of domestic violence. 
            The first element that the State must prove beyond a reasonable doubt is that the defendant(s) caused significant bodily injury to [name of person].
            Causation[3]has a special meaning under the law.  To establish causation, the State must prove two elements, each beyond a reasonable doubt: First, but for the defendant’s (defendants’) conduct, the result in question would not have happened.  In other words, without defendant’s (defendants’) actions the result would not have occurred.
(When Purposeful or Knowing Conduct Involved)
Second, the actual result must have been within the design or contemplation of the defendant(s).  If not, it must involve the same kind of injury or harm as that designed or contemplated, and must also not be too remote, too accidental in its occurrence or too dependent on another’s volitional act to have a just bearing on the defendant’s (defendants’) liability or on the gravity of (his/her/their) offense.
(When Reckless Conduct Involved)
Second, [for reckless conduct] that the actual result must have been within the risk of which the defendant(s) was (were) aware.  If not, it must involve the same kind of injury or harm as the probable result and must also not be too remote, too accidental in its occurrence or too dependent on another’s volitional act to have a just bearing on the defendant’s (defendants’) liability or on the gravity of (his/her/their) offense.
(CHARGE IN ALL CASES)
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.[4] As you know, the five senses are sight, hearing, taste, touch and smell.  Bodily injury means physical pain, illness or any impairment of physical condition.[5]
The second element that the State must prove beyond a reasonable doubt is that the defendant(s) acted purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life, recklessly.
            A person acts purposely with respect to the result of his/her conduct if it is his/herconscious object to cause such a result.  A person acts purposely if he/sheacts with design, with a specific intent, with a particular object or purpose, or if he/shemeans to do what he/shedoes.
            A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/sheis aware that his/herconduct is of that nature or that such circumstances exist or if he/sheis aware of a high probability of their existence.  A person acts knowingly with respect to the result of his/herconduct if he/sheis aware that it is practically certain that his/herconduct will cause such a result.
            A person acts recklessly with respect to the result of his/herconduct if he/sheconsciously disregards a substantial and unjustifiable risk that the result will occur from his/herconduct.  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 actor’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 which you find that he/sheacted.  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.[6]
            In determining whether the defendant(s) acted purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life, recklessly, you may consider the nature of the act(s) itself (themselves) and the severity of the resulting injury (injuries).
            Purpose, knowing and reckless are conditions of the mind that cannot be seen and can only be determined by inferences drawn from the defendant’s (defendants’) conduct, words or acts.  A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts.  Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he/shehad a certain state of mind when he/sheengaged in a particular act.  It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of the defendant’s (defendants’) acts and conduct, from all that (he/she/they) said and did at the particular time and place, and from all surrounding circumstances.
The third element that the State must prove beyond a reasonable doubt is that [name of person] meets the definition of a victim of domestic violence.[7]  In order for the State to prove this element, the State must first prove beyond a reasonable doubt that the defendant(s) caused significant bodily injury to [name of person], and that the defendant(s) acted purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life, recklessly.  The State must then prove beyond a reasonable doubt that
(CHOOSE AS APPROPRIATE)[8]
(Relationship Class One)
[name of person] is 18 years of age or older or an emancipated minor and the defendant(s) is [name of person’s] spouse, former spouse, or any other person who is a present household member or was at any time a household member.  Emancipated minor means a person who is under 18 years of age but who has been married, has entered military service, has a child or is pregnant or has been previously declared by a court or an administrative agency to be emancipated.[9]
(Relationship Class Two)
[name of person], regardless of age, has a child in common with the defendant(s), or [name of person], regardless of age, anticipates having a child in common with the defendant(s), if one of the parties is pregnant.  
(Relationship Class Three)
[name of person], regardless of age, has had a dating relationship with the defendant(s).  
(CHARGE IN ALL CASES)
All jurors do not have to agree unanimously concerning which form of aggravated assault is present so long as all believe that it was one form of aggravated assault or the other. However, to be guilty of aggravated assault, all jurors must agree that the defendant(s) either purposely or knowingly caused significant bodily injury to a person who, with respect to the actor, meets the definition of a victim of domestic violence or, under circumstances manifesting extreme indifference to the value of human life, recklessly caused significant bodily injury to such person.
            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.

OPTION TWO
(Attempt to Cause Significant Bodily Injury)
            To find the defendant(s) guilty of attempting to cause significant bodily injury to a person who, with respect to the actor, meets the definition of a victim of domestic violence, the State must prove beyond a reasonable doubt each of the following elements:

            1.        That the defendant(s) purposely[10]attempted to cause significant bodily injury to                          [name of person]; and 
2.         That [name of person] meets the definition of a victim of domestic violence. 
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 first element that the State must prove beyond a reasonable doubt is that the defendant(s) purposely attempted to cause significant bodily injury to [name of person].
            The law provides that a person is guilty of attempt if, acting purposefully, he/she:
(CHOOSE AS APPROPRIATE)

      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/herpart.  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 person would believe them to be, was an act (or omission) constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.  The step taken must be one that is strongly corroborative of the defendant’s (defendants’) criminal purpose.  The accused must be shown to have had a firmness of criminal purpose in light of the step(s) he/shehad already taken. These preparatory steps must be substantial and not just very remote preparatory acts.[11]
            A person acts purposely with respect to the result of his/herconduct if it is his/herconscious object to cause such a result.  A person acts purposely if he/sheacts with design, with a specific intent, with a particular object or purpose, or if he/shemeans to do what he/she does.
            In determining whether the defendant(s) acted purposely, you may consider the nature of the act(s) itself (themselves) and the severity of the resulting injury (injuries).
Purpose is a condition of the mind that cannot be seen and can only be determined by inferences drawn from the defendant’s (defendants’) conduct, words or acts.  A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts.  Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he/shehad a certain state of mind when he/sheengaged in a particular act.  It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference, which may arise from the nature of the defendant’s (defendants’) acts and conduct, from all that (he/she/they) said and did at the particular time and place, and from all surrounding circumstances.
(CHARGE IN ALL CASES)
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.[12] As you know, the five senses are sight, hearing, taste, touch and smell.  Bodily injury means physical pain, illness or any impairment of physical condition.[13]
The second element that the State must prove beyond a reasonable doubt is that [name of person] meets the definition of a victim of domestic violence.[14]  In order for the State to prove this element, the State must first prove beyond a reasonable doubt that the defendant(s) purposely attempted to cause significant bodily injury to [name of person].  The State must then prove beyond a reasonable doubt that
(CHOOSE AS APPROPRIATE)[15]
(Relationship Class One)
[name of person] is 18 years of age or older or an emancipated minor and the defendant(s) is [name of person’s] spouse, former spouse, or any other person who is a present household member or was at any time a household member.  Emancipated minor means a person who is under 18 years of age but who has been married, has entered military service, has a child or is pregnant or has been previously declared by a court or an administrative agency to be emancipated.[16]
(Relationship Class Two)
[name of person], regardless of age, has a child in common with the defendant(s), or [name of person], regardless of age, anticipates having a child in common with the defendant(s), if one of the parties is pregnant.  
(Relationship Class Three)
[name of person], regardless of age, has had a dating relationship with the defendant(s).  
(CHARGE IN ALL CASES)
            If you find that the State has proved beyond a reasonable doubt that the defendant(s) purposely attempted to cause significant bodily injury to a person who, with respect to the actor, meets the definition of a victim of domestic violence, then you must find the defendant(s) guilty.[17]
            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.[18]


[1]          N.J.S.A.2C:12-1b(12) took effect on August 10, 2015.
[2]          Options One and Two of this model charge are not mutually exclusive and, therefore, it may be appropriate to charge the jury as to both respective theories — that is, causing andattempting to cause significant bodily injury — depending on the nature of the Indictment and the evidence adduced at trial.  
[3]          N.J.S.A.2C:2-3.
[4]          N.J.S.A.2C:11-1d.
[5]          N.J.S.A.2C:11-1a.
[6]          In State v. Curtis, 195 N.J. Super.354, 364–65 (App. Div.), certif. denied, 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 Curtisin State v. Breakiron, 108 N.J.591, 605 (1987).  The case law has applied the Curtisprobability standard to the aggravated-assault statute.  State v. Scher, 278 N.J. Super.249, 272 (App. Div. 1994), certif. denied, 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.
[7]          N.J.S.A.2C:25-19d.
[8]          The definition of “victim of domestic violence” as contained in N.J.S.A.2C:25-19d refers to a specified person, protected under the Prevention of Domestic Violence Act of 1991, who “has been subjected to domestic violence” by another specified person.  The possible relationships between the parties as enumerated in N.J.S.A.2C:25-19d are separated into three classes for purposes of this model charge.  The term, “domestic violence,” as referenced in N.J.S.A.2C:25-19d, is defined in N.J.S.A.2C:25-19a as the occurrence of one or more of seventeen predicate acts inflicted upon a person protected under the Prevention of Domestic Violence Act of 1991 by an adult or an emancipated minor.  Since this model charge only concerns significant-bodily-injury aggravated assault to a person who, with respect to the actor, meets the definition of a victim of domestic violence, each of the seventeen predicate acts as enumerated in N.J.S.A.2C:25-19a need not be considered by a jury with regard to whether [name of person] meets the definition of a victim of domestic violence.  Indeed, the legislative purpose of N.J.S.A.2C:12-1b(12) is to remove the presumption of non-incarceration which is otherwise applicable to third-degree crimes for first-time offenders when a domestic-violence-related assault involves actual or attempted significant bodily injury.  S. Judiciary Comm. Statement to S.B. No.S2559 (June 11, 2015).  
[9]          N.J.S.A.2C:25-19e.
[10]        When a person actually causes significant bodily injury, “he is guilty whether his mental state is purposeful, knowing or reckless.  However, where the person does not cause serious bodily injury but only attempts to do so, he is guilty only if the attempt to cause that result is purposeful.” State v. McAllister, 211 N.J. Super.355, 362 (App. Div. 1986) (citing N.J.S.A.2C:5-1a; State v. Battle, 209 N.J. Super.255, 258-59 (App. Div.1986)). 
[11]        State v. Fornino, 223 N.J. Super.531, 538 (App. Div.), certif. denied, 111 N.J.570 (1988), cert. denied, 488 U.S.859, 109 S. Ct.152, 102 L. Ed.2d 123 (1988).
[12]        N.J.S.A.2C:11-1d.
[13]        N.J.S.A.2C:11-1a.
[14]        N.J.S.A.2C:25-19d.
[15]        The definition of “victim of domestic violence” as contained in N.J.S.A.2C:25-19d refers to a specified person, protected under the Prevention of Domestic Violence Act of 1991, who “has been subjected to domestic violence” by another specified person.  The possible relationships between the parties as enumerated in N.J.S.A.2C:25-19d are separated into three classes for purposes of this model charge.  The term, “domestic violence,” as referenced in N.J.S.A.2C:25-19d, is defined in N.J.S.A.2C:25-19a as the occurrence of one or more of seventeen predicate acts inflicted upon a person protected under the Prevention of Domestic Violence Act of 1991 by an adult or an emancipated minor.  Since this model charge only concerns significant-bodily-injury aggravated assault to a person who, with respect to the actor, meets the definition of a victim of domestic violence, each of the seventeen predicate acts as enumerated in N.J.S.A.2C:25-19a need not be considered by a jury with regard to whether [name of person] meets the definition of a victim of domestic violence.  Indeed, the legislative purpose of N.J.S.A.2C:12-1b(12) is to remove the presumption of non-incarceration which is otherwise applicable to third-degree crimes for first-time offenders when a domestic-violence-related assault involves actual or attempted significant bodily injury.  S. Judiciary Comm. Statement to S.B. No.S2559 (June 11, 2015).  
[16]        N.J.S.A.2C:25-19e.
[17]        Where appropriate, renunciation should be charged. N.J.S.A.2C:5-1d.
[18]        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, 326–30 (App. Div. 1996), rev’d. o.g.,150 N.J.503, 517 n.4 (1997).  See alsoState 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.VillarsupraSloanesupra.  When these lesser offenses are to be charged, the trial court and counsel should construct a sequence of the lesser offenses to be charged.  Villarsupra, 150 N.J.at 517 n.4.

Thursday, January 17, 2019

39 :4-50.19 Violation of law; penalties. Failure to impose interlock No jail, no fine if not driving

39 :4-50.19  Violation of law; penalties. Failure to impose interlock
No jail, no fine if not driving

   4. a. A person who fails to install an interlock device ordered by the court in a motor vehicle owned, leased or regularly operated by him shall have his driver's license suspended for one year, in addition to any other suspension or revocation imposed under R.S.39:4-50, unless the court determines a valid reason exists for the failure to comply.  A person in whose vehicle an interlock device is installed pursuant to a court order who drives that vehicle after it has been started by any means other than his own blowing into the device or who drives a vehicle that is not equipped with such a device shall have his driver's license suspended for one year, in addition to any other penalty applicable by law.

   b.   A person is a disorderly person who:

   (1)   blows into an interlock device or otherwise starts a motor vehicle equipped with such a device for the purpose of providing an operable motor vehicle to a person who has been ordered by the court to install the device in the vehicle;

   (2)   tampers or in any way circumvents the operation of an interlock device; or

   (3)   knowingly rents, leases or lends a motor vehicle not equipped with an interlock device to a person who has been ordered by the court to install an interlock device in a vehicle he owns, leases or regularly operates.

   c.   The provisions of subsection b. of this section shall not apply if a motor vehicle required to be equipped with an ignition interlock device is started by a person for the purpose of safety or mechanical repair of the device or the vehicle, provided the person subject to the court order does not operate the vehicle.

   L.1999, c.417, s.4; amended 2009, c.201, s.3.

2C:14-2 Sexual assault.

2C:14-2 Sexual assault.

2C:14-2. Sexual assault. a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1)The victim is less than 13 years old;

(2)The victim is at least 13 but less than 16 years old; and

(a)The actor is related to the victim by blood or affinity to the third degree, or

(b)The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status, or

(c)The actor is a resource family parent, a guardian, or stands in loco parentis within the household;

(3)The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape;

(4)The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object;

(5)The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion;

(6)The actor uses physical force or coercion and severe personal injury is sustained by the victim;

(7)The victim is one whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent. 

Aggravated sexual assault is a crime of the first degree.

Except as otherwise provided in subsection d. of this section, a person convicted under paragraph (1) of this subsection shall be sentenced to a specific term of years which shall be fixed by the court and shall be between 25 years and life imprisonment of which the person shall serve 25 years before being eligible for parole, unless a longer term of parole ineligibility is otherwise provided pursuant to this Title.


2C:14-3 Aggravated criminal sexual contact; criminal sexual contact

2C:14-3 Aggravated criminal sexual contact; criminal sexual contact
a. An actor is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in 2C:14-2a. (2) through(7).

Aggravated criminal sexual contact is a crime of the third degree.

b. An actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2c. (1) through(4).

Criminal sexual contact is a crime of the fourth degree.

L.1978, c.95; amended 1979, c.178, s.27; 1997, c.194, s.2.

Monday, January 7, 2019

Miranda warnings require police to advise those arrested of right to remain silent.

Miranda warnings require police to advise those arrested of right to remain silent. If police forget to give Miranda warning, statement or confessions can be used against that person. However, failure to give Miranda warnings does not invalidate an arrest.
Miranda applies not only upon arrest, but also upon custodial interrogation
It is fundamental that Miranda Warnings are required when a person is subject to "custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L. Ed.2d 694, 706 (1966).
"Custodial interrogation" has been defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id.
In State v. Cunningham, 153 N.J. Super. 350, 352-353, (App. Div. 1977), the Court (citingPeople v. Stewart, 62 400 P.2d 97, 102 (1965)), said:
   The test ... does not propose a determination of the actual intent or subjective purpose of the police in undertaking the interrogations but a determination based upon the objective evidence.
A defendant is in "custody" for purposes of Miranda if the actions of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he was not free to leave. State v. Barnes, 54 N.J. 1, 6 (1969) cert. den. 396 U.S. 1029, 90 S. Ct. 580, 24 L.Ed.2d 525 (1970). As such, the inquiry has been characterized as an "objective reasonable man" test. Id
The Fifth Amendment to the United States Constitution prohibits the use of involuntary statements and confessions at trial. The State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda  doctrine. New Jersey requires the higher standard of beyond a reasonable doubt when the court determines if Miranda  has not been fully complies with.  State v Yough, 49 NJ 587, 600-601 (1967),  State v Whittington 142 NJ Super. 45, 49-50 (App. Div. 1976), State v Flower 224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam  224 NJ Super. 90 (App. Div. 1988).

Absent Miranda Warnings to a defendant who is in custody, the prosecution may not use a defendant's answers to questions. State v. Hartley, 103 N.J. 252, 275 (1986). A valid waiver of a defendant's constitutional rights must be made voluntarily, knowingly, and intelligently - the State bears that burden of that proof beyond a reasonable doubt. Miranda v. Arizonasupra, 384 U.S. at 444, 86 S.Ct. at 1612,   State v. Bey, 112 N.J. 123, 134 (1988)

A violation of Miranda does not throw out an arrest. The Miranda violation only makes the verbal statements not admissible at trial

 WHAT IS INTERROGATION?

         As set forth in NJ Practice, Vol. 32 Criminal Practice and Procedure  (West 1998) Section 755, in Rhode Island V Innis,  446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) the United States Supreme Court held that the term "interrogation" under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit, an incriminating response from the suspect.
         It is "an established principle of our federalist system" that states may afford "individual liberties more expansive than those afforded by the federal constitution." State v Novembrino105 NJ 95, 144-145 (1987). 

           Generally, a statement given by a defendant is not admissible in a criminal case unless the court is satisfied beyond a reasonable doubt that the defendant was informed of his  Miranda rights before giving the statement and "in light of all the circumstances attending the confession it was given voluntarily." State v Hampton,61 NJ 250, 272 (1972). What is at stake is ensuring the use of effective procedural safeguards to secure the right of the Fifth Amendment to the United States Constitution that " no person shall be.... compelled in any criminal case to be a witness against himself," which is now made applicable to state action by the Due Process Clause of the Fourteenth Amendment. However, once informed of his rights " a defendant may waive effectuation of these rights provided the waiver is made voluntarily, knowingly and intelligently." State v Flower224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam 224 NJ Super. 90 (App. Div. 1988). citing  Miranda v Arizona  384 US 436, 444, 86 S. Ct 1602, 1612, 16 L. Ed 2d 694 (1966); emphasis in Flowers.
         In State v Flower224 NJ Super. 208, 213 (Law Div 1987) aff'd per curiam  224 NJ Super. 90 (App. Div. 1988), the defendant had a low IQ and limited vocabulary. He gave confessions to police and a confession to DYFS. The court excluded the confession to the police, even though Miranda warnings were given and there was lack of coercion and an admitted waiver of rights by the defendant. The court concluded that   since the Defendant could not understand his  Miranda  rights, he could not waive them. One cannot knowingly and intelligently waive a right that he cannot understand or appreciate. 224 NJ Super. at 216. The court also excluded confessions to a DYFS investigator on the same grounds since she was acting in a law enforcement capacity and failed to inform Defendant of his Miranda rights. Iat 220.
         Where it is charged that a confession was given under the influence of narcotics or during a withdrawal period, central question of voluntariness remains the same, and the trial court must scrutinize all the pertinent facts attending the confession with particular focus on Defendant's demeanor, coherence, articulateness, capacity to full use of his faculties, his memory and his overall intelligence.  State v Arcediano371 F. Supp. 457 (D. NJ 1974); See also  Wade v Yeager245 F. Supp 62 (D. NJ 1964).     

         The State must prove beyond a reasonable doubt that the waiver was made knowingly and intelligently.  If the suspect is intoxicated or under the influence of drugs to the point that he cannot understand his constitutional rights, then any waiver is void.  If the suspect is suffering from a mental disability, which renders him incapable of understanding his constitutional rights, then any waiver is void.  The level of mental disability which would render a suspect incapable of understanding his constitutional rights is probably close to the point at which the suspect could be said to be incapable of managing his own affairs.
         Where circumstances cast doubt on knowing and intelligent  quality of alleged waiver of right to counsel, there can be no waiver.  State vs. Dickens192 NJ Super. 290 (App. Div. 1983).
         Intoxication is grounds to suppress statements. See e.g.  Common vs. Brithsher  563 A.2d 502, App granted 575 A.2d 107. (If Defendant's intoxication combined to render him incapable of understanding Miranda warning waiver of Miranda rights would be invalid);  Common vs. Andel477 A.2d 13 56 (1984); (Defendant's waiver of his Miranda rights was vitiated by his intoxication,  his eyes glaring and had a strong odor of alcohol.  Statements made by defendant while in custody should suppressed.)
         The court has always set high standards of proof for the waiver of constitutional rights Johnson vs. Zerbst  304 US 458 58 S. Court 1019, 82 Ed 146 (1938). In Common vs. Hosey334 NE 2d 44 ( Mass 75 ) the court reversed and remanded a matter where tried judge allowed admission of defendant's statement to police where defendant was extremely high, extremely emotional and detected from reality.
          Due process requires not only that a conviction not be based on an involuntary confession but also that a trial court hold what has become known as a Jackson Denno hearing when a defendant contests the voluntariness of his statement. Miller vs. Dugger  838 F. 2d 1530 ( 11 Cir. 1988) cert. den 486 US 1061. 1085.S. Ct.  2832 100 L. Ed 2d 933 (1988).
         A Jackson-Denno hearing refers to the court proceeding determining whether a defendant’s confession was voluntary or involuntary, based onJackson v. Denno, 378 U.S. 368 (1964).At the Jackson- Denno hearing and at oral argument, we will explain through cross-examination and witnesses the involuntary nature of any statements the state intends to produce.  
Criminal Lawyers Job ABA p40
Issues to determine if defendant was “in custody”
Was defendant free to leave?
Was defendant put  in handcuffs?
Was he in patrol car?
Was he in police station?
Was he free to leave police station?
Was he given Miranda warning?

                                                    Respectfully submitted

                                                  KENNETH A. VERCAMMEN
                                                      ATTORNEY AT LAW