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New Jersey Assault Charges - NJSA 2C:12-1

§ 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:39-1 f., 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 Youth and Family Services 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

(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 f. 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.

(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 section.

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.

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.

History:

L. 1978, c. 95; amended 1979, c. 178, § 22; 1981, c. 290, § 14; 1983, c. 101, § 1; 1985, c. 97, § 2; 1985, c. 444, § 1; 1990, c. 87, § 1; 1991, c. 237, § 2; 1991, c. 341, § 2; 1993, c. 219, § 2; 1995, c. 6, § 1; 1995, c. 181, § 1; 1995, c. 211, § 1; 1995, c. 307, § 2; 1997, c. 42, § 1; 1997, c. 119, § 1; 1999, c. 77, § 1, eff. April 30, 1999; 1999, c. 185, § 2, eff. Dec. 1, 1999; 1999, c. 281, § 1, eff. Feb. 1, 2000; 1999, c. 381, § 1, eff. Jan. 14, 2000; 2001, c. 215, § 1, eff. Aug. 20, 2001; 2001, c. 443, § 2, eff. Jan. 11, 2002; 2002, c. 53, § 1, eff. Aug. 3, 2002; 2003, c. 218, § 1, eff. Jan. 9, 2004; 2005, c. 2, § 1, eff. Jan. 19, 2005; 2006, c. 78, § 2, eff. Aug. 2, 2006.

Amendment Note:

2006 amendment, by Chapter 78, in b.(5)(d), inserted "public or nonpublic school or" three times preceding "school board"; and substituted "(i)" for "I" as the designation for the subparagraph following b.(5)(h).

Effective Dates:

Section 6 of L. 1999, c. 185 provides: "This act shall take effect on the first day of the fourth month after enactment." Chapter 185, L. 1999, was approved on August 19, 1999.

Section 2 of L. 1999, c. 281 provides: "This act shall take effect on the first day of the second month following enactment." Chapter 281, L. 1999, was approved on December 20, 1999.

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State in the Interest of D.H., unpublished opinion, App. Div. Docket No. A-1654-08T4 (May 20, 2010) - Adjudication of delinquency reversed. "The trial court ruled that the print screens Detective Kappre received from AFIS [allegedly containing defendant's fingerprints] were admissible under the business records exception to the hearsay rule....

Detective Kappre did not have the requisite knowledge to lay the foundation for the admission of these AFIS records as business records. He had only the barest knowledge of AFIS and could testify only that it used an algorithm to generate a response to a request. The trial court, in a proper exercise of its discretion, admitted Kappre as an expert in fingerprint comparison, and thus he properly expressed the opinion that the latent prints removed from the GPS box matched the prints on the screen he received from AFIS. He had no basis, however, upon which to testify that the enlarged prints he received from AFIS to compare with the latent prints were, in fact, the prints of D.H....

In addition to citing the business records exception to the hearsay rule, the trial court ruled that these documents received from AFIS were admissible as public records under N.J.R.E. 1005. This rule provides, 'The contents of an official record or of a writing authorized to be recorded or filed, if otherwise admissible, may be proved by a copy, certified as correct in accordance with Rule 902, or testified to be correct by a witness who has compared it with the original.' N.J.R.E.
1005 specifies, however, that the document must be 'otherwise admissible.' Here, the AFIS records were not 'otherwise admissible' in the absence of a proper foundation, which Kappre was not equipped to provide."

State v. Kelly, ? N.J. ?, 992 A.2d 776 (2010) - Conviction and Appellate Division affirmance upheld. "In this case, a jury convicted defendant Duane Kelly of committing multiple crimes, including two murders and a robbery. Based on the court's instructions, the jury could only have found that those crimes were committed with the use of a .357 or .38 caliber handgun.

The jury, however, acquitted defendant of both having unlawfully possessed that weapon and having possessed it for the purpose of committing the murders and robbery. The trial court ordered a new trial on the convictions because of a defense witness's perjured testimony.

At the second jury trial, defendant was convicted, as a principal, of the murders and robbery. Defendant claims that the second trial violated the Double Jeopardy Clause of the Fifth Amendment. He essentially argues that by finding him not guilty of possessing the murder weapon, the first jury must have concluded that he was an accomplice and not the shooter....

Defendant's retrial did not offend any principle of collateral estoppel incorporated within the constitutional guarantee against double jeopardy. A review of the jury charge and verdict sheet in the first trial indicates that the acquittals and convictions constituted an inconsistent verdict.... Because the first trial's acquittals did not determine as an ultimate fact that defendant was an accomplice rather than the shooter, it follows that the State was not foreclosed on double jeopardy grounds from proceeding on a theory that he acted alone.

Even if the verdicts were not inconsistent, we would be loath to conclude that the State should be collaterally estopped from proceeding with a new trial necessitated by perjured testimony presented by defendant, however innocently, which tainted the convictions and the acquittals in the first trial."

State v. Karl Lester Murphy, ? N.J. Super. ?, 2010 N.J. Super. LEXIS 63 (April 22, 2010) - Conviction reversed. "We agree with defendant's contention that the prosecutor's summation exceeded the boundaries of legitimate advocacy when she vouched for the credibility of her witness.... [Defendant] maintains that the prosecutor's argument that Carrasquillo had 'no stake in the outcome of the proceedings' is an instance of prosecutorial misconduct entitling him to a new trial.... Here, defense counsel did object, but the judge overruled the objection by saying in open court, in full hearing of the jury, that the prosecutor's remark was a 'fair comment' on the evidence. Thus, not only did the judge err by failing to strike the offending remark, he compounded the harmful effect of the remark by essentially signaling to the jury his agreement with the prosecutor's argument. The judge's comment had the effect of encouraging the jury to utilize the prosecutor's remark in its overall evaluation of whether it was defendant or Carrasquillo who was telling the truth."

State v. Todd A. Mosby, unpublished opinion, App. Div. Docket No. A-3233-08T4 (April 19, 2010) - Convictions reversed. " [T]he assistant prosecutor had acted improperly by having A.M. brought into the courtroom during his closing argument, having him seated in the front row and identifying him in front of the jury.

The assistant prosecutor explained to the trial court that he had a detective from his office locate A.M. and bring him to court so that he could show that A.M. was not in contempt of court. However, as the trial court observed, once defense counsel determined that he would not seek a warrant for A.M.'s arrest and would proceed with his closing argument, there was no need for the assistant prosecutor to demonstrate to the court that A.M. had not willfully refused to comply with the defense subpoena....

[T]here was no reason for the assistant prosecutor to identify A.M. before the jury during his summation.... Even if this was the assistant prosecutor's purpose, he could have made A.M.'s presence known to defense counsel outside the presence of the jury.... A.M.'s appearance in the courtroom during the assistant prosecutor's closing argument, and the assistant prosecutor's identification of him before the jury, substantially undermined ... defense counsel's closing argument.

A.M.'s appearance suggested to the jury that, despite defense counsel's assertions, the defense had not made a diligent effort to have A.M. testify. A.M.'s appearance also suggested to the jury that, had he testified, A.M. might have contradicted rather than supported defendant's testimony.... [W]e are convinced that the trial court should have granted defendant's motion for a mistrial. In our view, the instruction provided to the jury did not cure the prejudice that resulted from the assistant prosecutor's improper action."

State v. Frank G. Dellisanti, ? N.J. ?, 2010 N.J. LEXIS 387 (April 27, 2010) - Convictions reversed on other grounds. "We agree with defendant and with the Appellate Division that the prosecutor's line of questioning compelled defendant to comment starkly on the credibility of the witnesses against him. If during the retrial the State seeks to emphasize to the jury a lack of believability in the defendant's conspiracy theory, it must do so without asking the defendant repeatedly to comment on
whether another testifying witness or witnesses are lying."

State v. Frederick J. Massimi, Jr., unpublished opinion, App. Div. Docket No. A-4424-07T4 (April 30, 2010) - Conviction Reversed. "[Defendant] was found guilty of conspiracy to commit terroristic threats as a lesser-included offense to conspiracy to commit aggravated assault in violation of N.J.S.A. 2C:5-2 and 2C:12-3....

Defendant now argues that 'conspiracy to commit a terroristic threat is not a lesser included offense of second degree aggravated assault [and] therefore, the trial court erred by finding Mr. Massimi guilty of the lesser included offense"....

As the decision to consider conspiracy to commit a terroristic threat was not considered at a charge conference, and defendant did not request or consent its consideration, it must be a true lesser-included offense in order to sustain the conviction....

[W]e agree with defendant that '[c]onspiracy to commit a terroristic threat is not a lesser included offense of conspiracy to commit aggravated assault because of the added element of the threat to commit a violent crime with the intent to terrorize.' The relevant portion of N.J.S.A. 2C:12-3a requires such a threat to 'commit [a] crime of violence with the purpose to terrorize another ...."

Certainly, a second degree aggravated assault is a crime of violence. It is found within Part 1, Subtitle 2 of the Code of Criminal Justice containing 'offenses involving danger to the person.' See also N.J.S.A. 2C:43-7.2d (the history of which reflects, by virtue of its pre-June 2001 provisions, application to second degree aggravated assaults). But while an aggravated assault may terrorize a victim, it need not do so and need not be performed with that purpose. Thus, while N.J.S.A. 2C:12-3 follows the provisions of Chapter 12 of the Code of Criminal Justice dealing with aggravated assaults, it is not a lesser-included offense within the meaning of N.J.S.A. 2C:1-8d."

State v. Kurt Lutchman, unpublished opinion, App. Div. Docket No. A-2745-08T4 (April 6, 2010) - Murder conviction reversed, case remanded for new trial. "In challenging his conviction on PCR, defendant contends that his trial attorney failed to inquire as to the significance of an autopsy finding that the victim had an arteriovenous malformation (AVM) and to consult with a forensic pathologist. Had counsel done so, he would have discovered that there was medical support for the position that Carol's death was not a homicide caused by blunt force trauma, as testified to by the then Bergen County Medical Examiner, but rather the result of a ruptured AVM which led to the subarachoid hemorrhage causing death....

[D]efendant has shouldered his burden on prong one related to his trial counsel's failure to consult a medical expert regarding the AVM issue and to present this aspect of the causation issue to the jury.... [T]rial counsel, during both cross-examination and his summation, argued that there was reasonable doubt regarding whether defendant's blows caused the hemorrhaging in his girlfriend's brain because none of her bones were broken.

Having already decided to present alternative and conflicting theories to create a reasonable doubt as to defendant's guilt and expressly having already pursued the causation argument, it was not within the wide range of professionally competent assistance to ignore the AVM finding in the autopsy report and what it could have led to if further explored by consulting a pathologist.

Here, it was not merely ignored, defense counsel did not even understand what AVM meant and did not bother to find out. The defense of causation could have been supported by scientific testimony which would have strengthened the defense immeasurably....

Defendant's trial counsel was ineffective because there would have been a reasonable probability of a different result if defendant had presented expert testimony that defendant's blows to his victim could not have directly caused the brain hemorrhages which killed her and that instead the hemorrhages were caused by a burst AVM.... While we can only speculate as to how defense counsel might have altered his trial strategy had he engaged a forensic pathologist, it would not be surprising if the defense was less diffused - blaming others for the attack, intoxication, and causation - and more focused test.

We lack confidence in the jury's murder verdict on the causation issue in an effort to create reasonable doubt in the jurors' minds. In any event, we are persuaded that defendant has satisfied the second prong of the Strickland."

State in the Interest of T.M., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 38 (March 8, 2010) - Denial of waiver of juvenile to adult court reversed. "We agree with the State that the undisputed evidence presented at the waiver hearing was sufficient to establish probable cause to conclude that the seventeen-year-old juvenile ... possessed firearms while in possession of heroin with intent to distribute....

The judge of the Family Part concluded that the evidence was insufficient to establish probable cause that T.M. possessed the safe and its contents, especially because Erica M. had been found on the third floor and could have placed the movable safe under T.M.'s bed as the police entered the home. The judge criticized the Newark police for neglecting to obtain fingerprints from the safe or the guns....

While the possibility that someone else placed the safe under T.M.'s bed without his knowledge may provide reasonable doubt to the ultimate factfinder, guilt or innocence is not at issue in a waiver hearing.... Here, it was more probable than not that the safe found under T.M's bed, in the bedroom that he occupied alone, was in his possession and he knew what it contained.

One can reasonably infer from the safe's location and T.M.'s exclusive occupancy of the room that T.M. put it under the bed. Although the safe was locked and movable, there was no evidence that anyone else had placed it there.... Here, the trial court imposed a burden upon the State to prove more than probable cause, essentially T.M.'s guilt. Imposition of that burden was legal error."

State v. Saladin Thompson, unpublished opinion, App. Div. Docket No. A-5366-06T3 (March 25, 2010) - "[W]e are satisfied that defendant established a prima facie case of purposeful discrimination in the prosecutor's exercise of peremptory challenges to excuse seven African-American prospective jurors. We therefore remand to the trial court for further proceedings pursuant to State v. Gilmore, 103 N.J. 508, 537 (1986)....

[D]efendant satisfied the first step of the three-step Gilmore test and the court should have required the prosecution to proceed to articulate clear and reasonably specific explanations for the excusal of the seven African-American jurors. Id. at 537. Of her twelve peremptory challenges provided by Rule 1:8-3(d), the prosecutor excused nine jurors, seven of whom were African-Americans, as is defendant.

The use of seven of a total of nine peremptory challenges the prosecution exercised to excuse African-Americans is evidence that the prosecutor excused a cognizable class of prospective jurors. The excusal of these seven African-Americans is also evidence that the prosecutor used a disproportionate number of peremptory challenges against this cognizable group. Id. at 535-36.

We do not agree with the argument advanced by the State that the proportionality analysis is based upon the total number of African-Americans finally seated, which in this case was five. While the composition of the jurors ultimately seated is a factor the court may consider in the third step of the process in weighing whether a defendant has met the ultimate burden of proving impermissible discrimination, it is not a factor that weighs against the defendant insofar as establishing a prima facie case. Id. at 536."

State v. Jamal R. Taylor, unpublished opinion, App. Div. Docket No. A-4447-08T4 (March 2, 2010) - Order granting new trial based on juror misconduct affirmed.

"The court found [juror] S.W's comments [to State's witness Detective Fine during a break in the trial], and the points of view expressed therein, had the capacity of undermining the reliability of the jury's verdict. Specifically, the comments 'you did fine' and either 'the defense lawyer was kind of crazy' or 'defense attorneys can be assholes' revealed that S.W. had 'a preconceived notion about criminal defense attorneys, a bias, a predisposition that certainly should have been revealed during voir dire.'...

Here, we agree with the trial court that S.W.'s bias or hostility against either this particular defense counsel, or criminal defense attorneys as a class, if disclosed during voir dire, would have most likely resulted in his exclusion from this jury panel based on counsel's exercise of one of her preemptory challenges. Indeed, such bias would have constituted sufficient grounds to excuse S.W. for cause....

[T]he State's argument that the trial court erred in failing to interrogate the other eleven jurors to ascertain whether S.W.'s bias tainted the entire jury... ignores defendant's constitutional right to a fair and impartial jury, which requires that all twelve jurors adhere to their oath to scrupulously follow the court's instructions on the law and to base their ultimate judgment only on the evidence presented in court."

State v. Frederick L. Hunt, unpublished opinion, App. Div. Docket No. A-1463-07T4 (March 25, 2010) - Conviction for possession of a firearm without a permit reversed. "The prosecution presented the disputed evidence [that two witnesses to defendant's taking of the gun would not give police their addresses because they 'were in fear for retaliation [because they] didn't know if the individual was involved in a gang or a drug deal...'] in response to defense cross-examination of Officer Kelly about the absence of addresses or phone numbers in his police report for the two elderly men to whom he spoke immediately before apprehending defendant....

Defendant now argues on appeal that the redirect testimony of the officer contained prejudicial hearsay that attributed criminal conduct to him, namely, it implied that defendant was involved in gang or drug dealing activity and might retaliate against the two men.... The testimony objected to was neither hearsay nor evidence of other crimes that should have been excluded under N.J.R.E. 404(b).... Nevertheless, reference to retaliation and gang or drug dealing activity should have been excluded because its probative value was substantially outweighed by the potential that it would unfairly prejudice defendant. N.J.R.E. 403....

Defendant was not accused of any criminal activity other than the alleged unlawful possession of the gun. Injecting the specter of possible retaliation and gang or drug dealing activity into the trial was highly prejudicial to defendant. At the same time, the probative value of the two men's statements was limited to collateral issues regarding the Officer Kelly's credibility and competency, but those issues were not particularly relevant to defendant's guilt or innocence.... Here, the State's need to explain the absence of addresses for the two men could have been satisfied by simply stating that the men would not give their addresses, without adding their reasons.

State v. Darryl T. Hester, unpublished opinion, App. Div. Docket No. A-6528-06T4 (March 18, 2010) - Convictions reversed. "In summary, evidence was presented to the jury that the police had conducted a month to a month and one-half long surveillance of the activities at Banks's apartment that first focused on Banks but later focused on defendant, as well.

During the course of that surveillance, defendant was observed as the seller in a hand-to-hand transfer of drugs, a criminal act, and that act constituted part of the evidence used by the police to establish probable cause for the issuance of warrants to search the apartment and defendant's person.

Additionally, controlled purchases from defendant had taken place. As the result of the police's investigation and the evidence thus garnered, court-authorized warrants were issued ..., leading to the discovery, not only the cocaine and heroin that formed the basis for the indictments, but also marijuana, providing the basis for another uncharged crime. Defense counsel did not object to the introduction of any of this evidence, and indeed, solicited the majority of it....

[D]efense counsel sought, by examining Buckley regarding his surveillance, to elicit testimony that would implicate Banks as possessor of the drugs found in Banks's apartment and would exculpate defendant. The opposite occurred, since defense counsel's questions led to the disclosure that Buckley had witnessed defendant as the transferror in a hand-to-hand transfer of drugs....

[E]ven if a proper basis for introduction of other crimes evidence had been identified and accepted, the trial judge must instruct the jury on the limited purpose for which the evidence is admissible and must inform the jury of the uses of the evidence that are prohibited.... This did not occur. Rather, the judge merely gave a contemporaneous instruction to the jury that it must focus on the crimes charged in the indictment....

We are satisfied that, in the circumstances presented, the combination of introduction of other crimes evidence with evidence that probable cause for the issuance of warrants had been established on the basis of evidence that was not presented to the jury was sufficient to create a real possibility of an unjust result, thereby constituting plain error. While much of the evidence was introduced through the efforts of defense counsel, the errors committed were sufficient to 'cut mortally into [defendant's] substantive rights,' [citation omitted], therefore requiring a reversal of defendant's conviction." (Frank M. Gennaro, Designated Counsel)

State v. Vincent P. Boland, unpublished opinion, App. Div. Docket No. A-5857-07T4 (March 23, 2010) - Conviction for harassment reversed. "[W]e are unable to give the credibility findings of the municipal court judge the usual deference due to the concern that his perception of the case was colored by his prior experience [involving a teacher hitting a student when he was in school] and the evidentiary error in refusing to consider L.G.'s financial interest in these events [because of his pending civil suit against defendant] when weighing his credibility.

Accordingly, we remand for a retrial before a different Law Division judge. The retrial is not a de novo trial based on the earlier testimony. Rather a new trial must be conducted with witnesses testifying in order that the trier of fact can determine credibility.... We also reverse because no adequate findings were made on the intent required to sustain a charge of harassment ... under N.J.S.A. 2C:33-4(a)....

It is only where the statements are said with animus, with the purpose to harass the student, independent of any legitimate teaching concern, that the harassment statute should be invoked. On remand, careful attention must be paid not only to determining the credibility of the witnesses to decide what actually happened but also to ascertain if defendant had any intent to harass within the meaning of the statute."

State v. Frederick L. Hunt, unpublished opinion, App. Div. Docket No. A-1463-07T4 (March 25, 2010) - NJ Conviction for possession of a firearm without a permit reversed. "At trial, defendant asserted that he was arrested within one minute of picking up a handgun he found on the sidewalk to prevent danger to children and others, he never intended to keep the gun, and he had no opportunity to turn it in to the police before his arrest....

A common law defense of justification was presented by the evidence, and it was relevant to opposing arguments regarding the one disputed issue in the case, defendant's intent. Justification as a defense required instruction to the jury, even in the absence of a request by counsel.... In this case, the State argues that danger to nearby children and others was not imminent and compelling....

Although there was no specific evidence of children or others who might have picked up the gun, other than the two elderly men, the immediacy of danger presented by a loaded handgun on a city sidewalk was a factual issue for the jury to determine. Defendant was entitled to the jury's consideration of a provision of the Code that recognizes a defense of justification to protect against a greater harm than his own allegedly temporary possession of the handgun without a permit....

[The jury instructions] focusing the jury only on 'the time and opportunity to surrender the handgun,' and on whether defendant intended to do so, did not fully apprise the jury of the law regarding alleged justification for defendant's conduct. Charges on temporary possession and intent, combined with a charge on justification, would have fully informed the jury about the law applicable to the factual issues raised by the defense." (Kevin G. Byrnes, Designated Counsel)