Aggravated assault is a very serious crime in New Jersey. Anyone accused of committing aggravated assault in NJ could risk losing their freedom. Aside from the stigma associated with a conviction, a person could face years in prison and an extremely high fine. The conviction will make it quite difficult to hold down a steady job, attend school, or find housing.

A charge of aggravated assault can stem from many common scenarios. A person may have been trying to defend himself or another person, or protecting his property. Other times it can be the result of tempers just flaring up. Whatever the reason, it is vital to contact an experienced NJ criminal defense attorney who can help keep your criminal record clean, keep you out of prison, and defend your legal rights.

What is Aggravated Assault?

In New Jersey, a person can face charges for simple assault or aggravated assault. As the name implies, aggravated assault is more serious. The aggravated assault statute in New Jersey is complex and can be quite confusing. Below is a breakdown of what counts as aggravated assault in New Jersey.

According to penal code N.J.S.A. 2C:12-1(b), there are 11 ways a person can be found guilty of aggravated assault:

  • Cause or attempt to cause serious bodily injury to another individual purposely, knowingly, or under circumstances manifesting an extreme indifference to the value of human life
  • Cause or attempt to cause—either purposely or knowingly—bodily injury to another person with a deadly weapon
  • Recklessly cause bodily injury to another person with a deadly weapon
  • Knowingly (and under circumstances that manifest an extreme indifference to the value of human life) point a firearm at or in the direction of another person, whether the accused knew it is loaded or unloaded
  • Commit simple assault against any of the following people during the scope of their employment:
    • Law Enforcement Officer
    • Fireman
    • EMT/EMS Responder
    • School Board Member, Teacher, School Administrator, School Bus Driver, or Any Other Public or Private School Employee
    • DYFS Employee
    • Member of the Judiciary (i.e. Judges and Justices)
    • Bus Driver, Train Conductor, or Other Employee of a Rail Passenger Service
    • Department of Corrections Employee or Other Jail Employee
    • Utility or Cable Company Employee
    • Health Care Worker
    • Direct Care Worker at a Psychiatric Hospital or Center
  • Cause bodily injury to another person while fleeing or attempting to elude a law enforcement officer or while committing a theft crime
  • Cause or attempt to cause significant bodily injury to another individual or knowingly (or under circumstances manifesting extreme indifference to the value of human life) or recklessly cause such significant bodily injury
  • Cause bodily injury by knowingly or purposely starting a fire or an explosion that results in bodily injury to emergency services personnel
  • Knowingly—and under circumstances manifesting extreme indifference to the value of human life—point or display a firearm at or in the direction of a law enforcement officer
  • Knowingly point, display, or use an imitation firearm at or in the direction of a law enforcement officer with the purpose to intimidate, threaten, put the officer in fear of bodily injury, or for any unlawful purpose
  • Use or activate a laser sighting system or device (or a system or device that would cause a reasonable person to believe that it is a laser sighting system or device) against a law enforcement officer

Penalties and Fines

The penalties and fines for aggravated assault are starkly different than those for simple assault. Aggravated assault in NJ is either a second-, third-, or fourth-degree crime.

Essentially, the specific circumstances of the case and the severity of injuries caused will determine which degree he/she is charged with:

  • Fourth-Degree Aggravated Assault: Up to 18 months in prison and up to $10,000 fine
  • Third-Degree Aggravated Assault: 3 to 5 years in prison and up to $15,000 fine
  • Second-Degree Aggravated Assault: 5 to 10 years in prison and up to $150,000 fine

Aggravated assault is a fourth-degree in when someone:

  • Recklessly injures a person to another with a deadly weapon.
  • Points a firearm at another person.
  • Commits simple assault against an officer or other person defined under subsection 5 (e.g. a cop or teacher) but does not cause bodily harm.

Aggravated assault in a third-degree crime when someone:

  • Purposely attempts hurt another person with a deadly weapon.
  • Attempts to cause serious injury to another person in a manner that shows an indifference to the value of human life.
  • Points a gun–even an imitation gun–at a law enforcement official.
  • Uses a laser targeting system on an officer in a way that leads the cop to believe he/she is being targeted by a weapon.
  • Starts a fire that causes significant (but not serious) injuries to emergency personnel.
  • Commits simple assault against an officer or other person defined under subsection 5 and causes serious injury.
  • Intentionally chokes a domestic partner or family member.

Aggravated assault is a second-degree crime when someone:

  • Injures another while fleeing police.
  • Starts a fire that causes serious injury to emergency personnel.
  • Commits almost any other act not otherwise defined under the statute that causes serious injury to another person or demonstrates a disregard for human life.

Simple Assault vs Aggravated Assault

New Jersey has two types of basic assault charges: simple assault and aggravated assault. As the names imply, the former is less serious than the latter. Simple assault heard in Municipal court whereas the more serious crime of  aggravated assault is heard in Superior Court. The question of which charge a person will be facing will depend on the circumstances of the assault.

In general, simple assault involves threats or attempts to hurt another person or attacks that cause minor injuries, such as bruises or small cuts. Aggravated assault is most often used in cases involving serious injuries, or when a weapon is used. Certain circumstances can cause a simple assault to become aggravated assault, such as when a person attacks a police officer or teacher.

Strangulation Can be Aggravated Assault 

A person can be charged with third-degree aggravated assault when he/she intentionally strangles/chokes a domestic partner or other family member. In order to be convicted, the prosecution must prove that either knew or showed little concern for how the action harmed the victim.

This is a more recent addition to the list of crimes that can be considered aggravated assault. It was signed into law in New Jersey in 2017. The new law also eliminated the presumption of non-incarceration for a first offense that some instances of assault carry (see below).

Defending an Aggravated Assault Charge

There are several ways to defend an aggravated assault charge such as intoxication, misidentification and false charges. The most likely defense, however, is where a person acted in self defense. A person can protect themselves from a conviction for aggravated assault if he/she acted in self-defense. This is not always easy to prove. With the help of a skilled criminal defense attorney, it may be possible to construct a defense strategy with the best chance of avoiding a conviction.

According to N.J.S.A. 2C:3-4:

The use of force or deadly force upon or toward an intruder who is unlawfully in a dwelling is justifiable when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the use of unlawful force by the intruder on the present occasion.

Also, a person is allowed to defend another person in situations where he/she would have been justified to use force in self-defense. Thus, if the victim of assault was trespassing inside a home and the defendant was acting in defense, then the assault charge can be dismissed.

This defense only requires the attorney to show that there was a “reasonable appearance” of the right to use force. In other words, it does not matter if the use of force is ultimately unjustified—only that it reasonably appears to be so at the time.

Furthermore, someone using force in order to defend his/her property may also be able to avoid a conviction for aggravated assault.

Under N.J.S.A. 2C:3-6:

The use of force upon or toward the person of another is justifiable when the actor is in possession or control of premises or is licensed or privileged to be thereon and he reasonably believes such force necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by such other person in or upon such premises.

However, defense of property can only be used if the defendant told the trespasser or aggressor to desist from interfering with the property. Furthermore, the defendant will not be permitted to use deadly force to save the property alone. He/she must first have a reasonable belief that the trespasser or aggressor is going to use deadly force against him/her.

In certain circumstances, a “mistake of fact” defense could also be used. A mistake of fact defense can only be used if it proves the defendant didn’t intend to hurt someone. For instance, suppose a man just slapped his friend really hard on the back after he said something insulting. It turns out that the area slapped was an old army injury and now, due to the slap, the friend collapsed on the floor in agony!

In this case, the defendant had no idea about the injury. Had he known, he would never have slapped his friend in the first place. This set of facts could give rise to a mistake of fact defense that might help avoid an assault conviction.

Remember, it is crucial to hire an experienced NJ criminal defense attorney who knows when and how to raise these sorts of defenses and how to protect one’s legal rights.

Consequences for a First Offense

Although aggravated assault can lead to substantial jail time, judges consider many factors before handing down a sentence. Among them is whether the accused is a first-time offender. If a person’s first offense is aggravated assault, it is possible to argue that he/she should be sentenced to probation rather than prison.

An attorney could argue that the defendant would be better served undergoing counseling for anger management or alcohol/drug abuse, depending on the circumstances of the alleged assault. It could also be pointed out that a person with no prior history of violence simply had a lapse of judgment and that the incident is an outlier for an otherwise peaceful individual.

Consequences for Juveniles

Even the best and brightest youths—especially teenagers—are still learning to manage their emotions and actions. As such, a child who has committed aggravated assault needs to be defended against undue punishment that could exacerbate the underlying problem, rather than rehabilitate the youth. When it comes to aggravated assault, juveniles could face the possibility of detention, rather than prison. Depending on the severity of the charge, a youth could face between 1 and 3 years in a juvenile detention facility.

With the help of an attorney, however, it is possible to avoid either a conviction or, at least, detention. Instead, the attorney can argue that community service, counseling, and perhaps even job placement would be more suitable.

Enrolling in NJ Diversionary Programs

New Jersey offers diversionary programs to help those charged with certain crimes avoid conviction and jail time. The goal is to focus on the rehabilitation of the individual. Those charged with third- or fourth-degree aggravated assault can be potentially admitted to such programs if they otherwise meet eligibility criteria.

One such program would be Pre-Trial Intervention (PTI). In order to enroll, the applicant may be required to first enter a guilty plea to the charges—if the program is successfully completed then the charges are dropped and the plea is nullified.

If the program is not completed any guilty plea stands and the person is convicted and sentenced without trial. If the applicant is not required to enter a plea and still fails to complete the program, then the case can be brought to trial.

A typical PTI program may include counseling, probation, community service, and job training.

The Veterans Diversion Program is another option for active or former members of the United States military and National Guard. These programs combine case management, mental health services and other treatment as recommended by the judge.

It is best to consult with an attorney before considering a diversionary program as part of a defense strategy. The reason being that being accepted into diversion isn’t a guarantee. It also may not in fact be the best option under the circumstances.

Expunge Aggravated Assault

A person who has already been convicted of aggravated assault may not have to suffer the stigma of a criminal record forever. New Jersey allows some individuals to have their criminal record cleared (expunged). In order to file a petition, a person must first wait 6 years (4 if there are no indictable offenses on the record) after the completion of the sentence and repayment of any fines. During that time, he/she cannot be convicted of any other offenses.

While aggravated assault is an eligible offense for expungement, some crimes, such as robbery or sexual assault, will result in an automatic rejection of the expungement petition.

Check out our NJ expungement page to learn more about the process and requirements and be sure to speak with an attorney before attempting to file an expungement petition.

The law offices of Carlos Diaz-Cobo is experienced and committed to successfully defending individuals accused of aggravated assault. Call the Law Offices of Carlos Diaz-Cobo at 732-249-1125.