Aggravated Assualt and Defense of Others: Part 1

by | Feb 26, 2018 | Blog, Criminal Law, New Jersey, Violent Crimes

On December 26, 2017, a three-judge appellate panel decided the Atlantic County case of State v. Belton. The principle issue arose under N.J.S.A. 2C:3-5 “Use of Force for the Protection of Other Persons.” It was whether Belton was entitled to have his guilty plea to first degree aggravated manslaughter vacated because he stated during the plea allocution that he placed the victim in a choke-hold to stop the victim from biting a third person’s hand. This suggested that he was innocent based on a justifiable defense of another.

In relevant part, the Court held that it discerned no reason why the principles set forth in Urbina would not apply with equal force to a suggested claim of a defense of others. Like self-defense, it is an affirmative defense that exonerates a defendant; it depends on an honest, actual, and reasonable – but not necessarily accurate – belief that force is necessary; and, once raised, imposes on the State the burden to disprove it. We recognize that the defense includes additional elements. A defendant must establish: he would be justified in using such force to protect himself against the injury threatened to the other person; he reasonably believed the protected person would be justified in using such protective force; and he reasonably believed his intervention was necessary to protect the other person. Also, a person may resort to the use of deadly force – in self-defense or defense of others – only if the person reasonably believes it necessary to protect against “death or serious bodily harm.”

Applying Urbina, we are persuaded that defendant suggested a defense of others. He contended he was asked to come to the aid of two women. Defendant said he applied force to the victim’s neck to get him to stop biting Pugh’s hand. Thus, he suggested he did so to protect against “serious bodily harm” – that is, “bodily harm which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.”

“Serious bodily injury” is a term that is often exploited by prosecutors in arguing that a third-degree aggravated assault is actually a second-degree offense. Third degree aggravated assault requires a less severe degree of injury, namely “significant bodily injury.” Significant bodily injury describes a non-permanent injury, as opposed to the “permanent injury” required for a second degree.  In the every-day use of the term, a third degree “significant bodily injury” would be described as “serious.” Therein lies the potential for confusion that can be exploited to the detriment of the accused.

Excellent rating
Based on 288 reviews
Google star 1Google star 2Google star 3Google star 4Google star 5
Google star 1Google star 2Google star 3Google star 4Google star 5
Have been very happy to share checkpoint info with friends so they can be safe and sober drivers. Thanks for a great community effort
Ron T
Google star 1Google star 2Google star 3Google star 4Google star 5
Deserved 5 star review. I got all my charges dismissed.
Mraz09222
Google star 1Google star 2Google star 3Google star 4Google star 5
2 👍🏻👍🏻 up
Cc
Google star 1Google star 2Google star 3Google star 4Google star 5
I got my life back together because of this man he is quick,strategic,and will get you threw almost any criminal matter.When things are looking rough legal wise he will fight for you…FRED SISTO THE WAY TO GO!!!
Byron P
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred is an outstanding lawyer. As a fellow attorney, I've relied on his expertise in several cases, and have referred clients to him with excellent results.
Wyman
Google star 1Google star 2Google star 3Google star 4Google star 5
Great site Fred. keep up the good work at informing the public of these unlawful check points.
Mark H
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred is a very competent attorney. He is knowledgeable, thorough, effective and possesses outstanding interpersonal skills. He provided excellent representation in my case and obtained a favorable outcome.
Michael G
Google star 1Google star 2Google star 3Google star 4Google star 5
I called Mr. Sisto a few weeks back and he returned the call immediately! I asked a few questions and he clearly explained the options for one of my employees. He then followed up with a detailed proposal. He was completely knowledgeable, helpful and insightful. If I ever had to use him I would feel VERY comfortable with his representation.
Dave P
Google star 1Google star 2Google star 3Google star 4Google star 5
mr. fred sisto esq. was very professional, answered all questions i had, & made my husband & i feel more at ease about our criminal case.
Meridith T
Google star 1Google star 2Google star 3Google star 4Google star 5
Thank you Fred for all your hard work and communication through my case. I got into a situation and very fortunate to have had Fred help me resolve it. He gave me great options and advice on how he would handle the situation and the steps we needed to follow. Highly satisfied with my experience and would highly recommend. Thank you Anthony Zappulla
Anthony Z