2C:12-1 Assault in connection with Domestic Violence complaints

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 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

(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 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 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.

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. 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 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).

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.

Conditional Dismissal of First offender criminal charges in Municipal Court.

      New law finally establishes a Conditional Dismissal of First offender criminal charges  in Municipal Court. Ken Vercammen testified in favor of the passage before the Assembly Judiciary Committee.

Governor Chris Christie on September 9 signed into law legislation co-sponsored by Senator Christopher “Kip” Bateman (R-Hunterdon, Mercer, Middlesex and Somerset) to provide a conditional assistance program in Municipal Court for certain first-time offenders. The law takes affect 120 days after signing.

“This initiative will give a broader range of first-time offenders who have committed a minor offense an opportunity to turn their lives around,” Bateman said. “The program will help foster participants’ rehabilitation and future success by giving them appropriate penalties without having the offense be a part of their permanent criminal record.” This law also helps Police and Prosecutors since it requires a guilty plea, thus reducing the need for trials and officer testimony.

Under prior law, the only offenses eligible for a conditional discharge were certain drug-related offenses. Bateman’s S-2588 allows discharge for many non-drug offenses, such as disorderly person’s offenses, which have not been able to participate in similar programs before.

“First-time offenders who are screened to meet the eligibility requirements will be able to use the program to avoid having a record that cannot be expunged until years after the sentence is served,” Bateman added. “The legislation will also help courts efficiently adjudicate cases without costly logjams.”

Under this law, conditional dismissal is not available to any person who has previously participated in a conditional discharge, conditional dismissal, or supervisory treatment program such as PTI. In addition, a person is not eligible for conditional dismissal if the offense for which the person is charged involved:

•  organized criminal or gang activity;

•  a continuing criminal business or enterprise;

•  a breach of the public trust by a public officer or employee;

•  domestic violence;

•  an offense against an elderly, disabled or minor person;

•  an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug;

•  animal cruelty;

•  or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code. [Although first offender drug defendants are eligible for Conditional Discharge]

        After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may, approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. 

      This law establishes a conditional dismissal program in municipal court similar to the existing supervisory treatment programs for pre-trial intervention and conditional discharge.

      Previously, the supervisory treatment programs for pre-trial intervention and conditional discharge allow the court to suspend proceedings against eligible defendants while the defendants participate in supervisory treatment.  Persons who are charged with indictable offenses (crimes of the first, second, third, or fourth degree) may be eligible for pretrial intervention (“PTI”) pursuant to N.J.S.2C:43-12 et seq.  Persons charged with certain disorderly persons or petty disorderly persons drug offenses may be eligible for conditional discharge pursuant to N.J.S.2C:36A-1.  If the defendant violates a term or condition of supervisory treatment, the court may enter a judgment of conviction or, where the defendant did not previously plead guilty and was not previously found guilty, resume the criminal proceedings.  If the defendant successfully completes the program, the criminal charges are dismissed.

      CONDITIONAL DISMISSAL PROGRAM. This law establishes a similar diversion program in municipal court to be known as the conditional dismissal program.  Under the provisions of the law, a defendant who is charged with a petty disorderly persons offense or disorderly persons offense may apply to enter into the conditional dismissal program, provided the defendant  has not been previously convicted of any offense or crime under any law of the United States, this State or any other state.  A defendant may make an application to the conditional dismissal program after a plea of guilty or a finding of guilt, but prior to the entry of judgment of conviction.

      FINGERPRINTING REQUIREMENT.  To allow sufficient time for verification of the defendant’s criminal history by the prosecutor and as a condition of the application, the defendant will be required to submit to the fingerprint identification procedures as provided in R.S.53:1-15 before making an application to the court.

      CONDITIONAL DISMISSAL PROGRAM ELIGIBILITY. Conditional dismissal will not be available to any person who has previously participated in conditional discharge, conditional dismissal, or PTI.  In addition, conditional dismissal will not be available if the offense for which the person is charged involved: organized criminal or gang activity; a continuing criminal business or enterprise; a breach of the public trust by a public officer or employee; domestic violence; an offense against an elderly, disabled or minor person; an offense involving driving or operating a motor vehicle while under the influence of alcohol, intoxicating liquor, narcotic, hallucinogenic or habit-producing drug; animal cruelty laws; or any disorderly persons offense or petty disorderly persons offense under chapter 35 or 36 of the Criminal Code (drugs and drug paraphernalia). However, a person who is charged with a disorderly persons or petty disorderly persons offense involving drugs or drug paraphernalia may apply for a conditional discharge in accordance with N.J.S.2C:36A-1.

      In addition to these eligibility criteria, the court considering the application must also consider the following factors: the nature and circumstances of the offense; the facts surrounding the commission of the offense; the motivation, age, character and attitude of the defendant; the desire of the complainant or victim to forego prosecution; the needs and interests of the victim and the community; the extent to which the defendant’s offense constitutes part of a continuing pattern of anti-social behavior; whether the offense is of an assaultive or violent nature, either in the act itself or in the possible injurious consequences of such behavior; whether the applicant's participation will adversely affect the prosecution of codefendants; whether diversion of the defendant from prosecution is consistent with the public interest; and any other factors deemed relevant by the court.

      If the court approves a defendant’s participation in the conditional dismissal program over the municipal prosecutor’s objection, that order will, upon the request of the prosecutor, be stayed for a period of 10 days in order to permit the prosecutor to appeal the order to the Superior Court.

      PROGRAM REQUIREMENTS.  After taking into consideration the eligibility criteria, the defendant’s criminal history and the prosecutor’s recommendation, the court may approve the defendant’s participation in the conditional dismissal program and place the defendant under a probation monitoring status for a period of one year. The court may also impose financial obligations and other terms and conditions in accordance with the law.  The law permits the defendant to apply to the court for an extension of the term of conditional dismissal to allow sufficient time to pay financial obligations imposed by the court.  In addition, a judge could extend the term for good cause.

      If a defendant who is participating in conditional dismissal is convicted of any offense or crime under any law of the United States, this State or any other state, or otherwise fails to comply with the terms and conditions imposed by the court, the court can enter a judgment of conviction and impose a fine, penalty, or other assessment in accordance with the defendant’s prior plea of guilty or prior finding of guilt.

      If, at the end of the term, the defendant has not been convicted of any subsequent offense or crime under any law of the United States, this State or any other state, and has complied with any other terms and conditions imposed by the court, the court may terminate the probation monitoring and dismiss the proceedings against the defendant.

      The law provides that a conditional dismissal of a petty disorderly persons or disorderly persons offense granted pursuant to the program will not be deemed a conviction for purposes of disqualifications or disabilities, but shall be reported to the State Bureau of Identification criminal history record information files for purposes of determining future eligibility or exclusion from court diversion programs.  A conditional dismissal granted will not be deemed a conviction for the purposes of determining whether a second or subsequent offense has occurred under any law of this State.

      LIMITATION.  A conditional dismissal can only be granted once with respect to any defendant.

      CONDITIONAL DISMISSAL APPLICATION FEE AND ASSESSMENT.  A person applying for admission to the conditional dismissal program will pay to the court an application fee of $75.  The fee would be deposited in the newly created “Municipal Court Diversion Fund” established under the law. Monies in this new fund will be used to offset the cost of intake and monitoring services related to the conditional dismissal program.  If admitted into the program, the defendant would also be required to pay any restitution, costs, and other mandatory assessments that would have been imposed by law for a conviction of the offense charged.

      A municipal court judge may impose an assessment, based on the nature of the offense and the character of the defendant that shall not exceed the amount of a fine that would have been imposed for conviction of the offense charged.  Such assessment would be distributed in the same manner as a fine for the offense.

      A defendant would be advised of these financial conditions prior to seeking entry into the program.

      The law allows the defendant to apply for a waiver of the fee by reason of poverty.  The court may also permit the defendant to pay the conditional dismissal fee and other assessments in installments or order other alternatives pursuant to section 1 of P.L.2009, c.317 (C.2B:12-23.1).  Under the provisions of that enactment, the court has several options available if it finds that a person does not have the ability to pay a penalty in full or has failed to pay a previously imposed penalty.  The court may reduce, suspend, or modify the installment plan; order that credit be given against the amount owed for each day of confinement if the court finds that the person has served jail time for the default; revoke any unpaid portion of the penalty; order the person to perform community service in lieu of payment of the penalty; or impose any other alternative permitted by law.

      MUNICIPAL COURT DIVERSION FUND.  The law establishes a new dedicated, non-lapsing fund to be known as the "Municipal Court Diversion Fund," which will be administered by the Administrative Office of the Courts.  The fund will be the depository of the $75 application fee for the conditional dismissal program.  Monies in the fund will be used to offset the cost of intake and monitoring services for defendants under the conditional dismissal program.

      CONDITIONAL DISCHARGE. Currently, the conditional discharge statute, N.J.S.2C:36A-1, provides that the $75 fee, which is charged for this program, is used to defray the costs of juror compensation. However, this provision is outdated since these monies are no longer used to defray the costs of juror compensation, but instead are paid to the State Treasurer to for deposit in the General Fund. This law updates this section of law accordingly.

      Under the current provisions of the conditional discharge statute, a person is not eligible for conditional discharge if that person has committed a disorderly persons or petty disorderly persons drug offense under any law of the United States, this State or any other state. The law amends section a. of N.J.S.2C:36A-1 to also provide that a person who has participated in any supervisory treatment program or the conditional dismissal program established under the law will not be eligible for participation in the conditional discharge program.

      SUPERVISORY TREATMENT (PTI).  Similar to the conditional discharge statute, the PTI statute, N.J.S.2C:43-12, provides that the $75 fee charged for the program is used to defray the costs of juror compensation. Since these monies are no longer used to defray the costs of juror compensation, the law updates this section of law accordingly.

      Under the current provisions of N.J.S.2C:43-12, PTI may only occur once and any person who has previously received PTI is not eligible for subsequent PTI. This law expands this provision by providing that a person who has participated in either conditional dismissal or conditional discharge will not be eligible for PTI.

      The law amends the conditional discharge and PTI statutes to provide that the court may allow the payment of the fees and other financial obligations in installments.

      EXPUNGEMENT. The law amends N.J.S.2C:52-6 concerning expungement of arrests not resulting in conviction to allow for expungement of charges dismissed pursuant to conditional discharge or conditional dismissal six months after the entry of the order of dismissal. Currently, this section allows for expungement for a person who has had charges dismissed as a result of participation in a supervisory treatment program.