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State v. Diaz

Decided: June 21, 1983.

STATE OF NEW JERSEY, PLAINTIFF,
v.
FERNANDO M. DIAZ, DEFENDANT



Long, J.s.c.

Long

The question presented is a novel one requiring interpretation of the assault provisions of N.J.S.A. 2C:12-1 et seq.: Can an individual who points an unloaded gun at a victim be convicted of aggravated assault pursuant to N.J.S.A. 2C:12-1(b)(4) or is he only exposed to a simple assault conviction under N.J.S.A. 2C:12-1(a)(3)?

The case arose as follows: Defendant, Fernando Diaz, was indicted by the Union County grand jury for several offenses,

one of which was aggravated assault contrary to the provisions of N.J.S.A. 2C:12-1(b)(4). Evidence at trial established that the pellet gun which Diaz pointed at his victim was not loaded and that the propelling cartridge was also missing. At the end of the State's case, Diaz moved for a judgment of acquittal on the aggravated assault charge claiming that the facts presented could sustain a conviction for simple assault only. For the reasons expressed below defendant's motion was granted and the charge against him downgraded to simple assault contrary to N.J.S.A. 2C:12-1(b)(4). He was convicted of this offense by a jury on May 19, 1983.

N.J.S.A. 2C:12-1 provides:

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 ...


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