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Kenneth Vercammen & Associates
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SIMPLE ASSAULT (Physical Menace/Substantial Step)

SIMPLE ASSAULT (Physical Menace/Substantial Step)
(Lesser Included)[1] Model jury charge 

(N.J.S.A. 2C:12-1a(3))

The law requires that the Court instruct the jury with respect to possible (lesser) included offenses, even if they are not contained in the indictment. Just because the Court is instructing you concerning these offenses does not mean that the Court has any opinion one way or another about whether the defendant committed these, or any, offenses. You should consider these offenses along with those for which the defendant is indicted. However, you are not to render a verdict on these offenses or answer the questions on the verdict sheet unless you find that the State has failed to meet its burden with regard to the offense(s) in the indictment.

Simple assault is a lesser-included offense to count _____ of this indictment. The statute which defines simple assault provides that:

A person commits a simple assault if he attempts, by physical menace, to put another in fear of imminent serious bodily injury.

In order for you to find the defendant committed a simple assault, the State must prove, beyond a reasonable doubt:

1. that the defendant purposely attempted to put (NAME OF VICTIM) in fear of imminent serious bodily injury.

2. that the defendant did so by physical menace.

The first element that the State must prove is that the defendant purposely attempted to put (NAME OF VICTIM) in fear of imminent serious bodily injury.

Serious bodily injury means bodily injury 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.[2]

Imminent means likely to happen without delay.[3]

In order to find that the defendant attempted to put another in fear of imminent serious bodily injury, you must find that he/she did so purposely.

A defendant acts purposely with respect to the nature of his/her conduct or a result thereof if it is his/her conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he/she is aware of the existence of such circumstances or he/she believes or hopes that they exist.

Purpose is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that the defendant stated, for example, that his/her purpose was to put the victim in fear of imminent bodily injury. It is within your power to find that proof of purpose has been furnished beyond a reasonable doubt by inferences which may arise from the nature of the acts and the surrounding circumstances.

An attempt occurs, in the context of this charge, if the defendant purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in the course of conduct planned to culminate in his/her putting the victim in imminent fear of serious bodily injury.

To find the that the defendant committed a simple assault by attempting to put (NAME OF VICTIM) in imminent fear of serious bodily injury by physical menace, the State must prove beyond a reasonable doubt that the defendant had the purpose to put the victim in imminent fear of serious bodily injury. The State must also prove beyond a reasonable doubt that the defendant purposely did or omitted to do anything, which, under the circumstances as a reasonable person would believe them to be, is an act or omission that is a substantial step in the course of conduct planned to culminate in his/her putting the victim in fear of imminent serious bodily injury. However, the step taken must strongly show the defendants criminal purpose. That is, the step taken must be substantial and not just a very remote preparatory act, and must show that the accused has a firmness of criminal purpose.[4]

The second element the State must prove beyond a reasonable doubt is the defendant attempted to put NAME OF VICTIM in fear of imminent serious bodily injury by physical menace.

The State must prove beyond a reasonable doubt that the defendant attempted to put the victim in imminent fear of serious bodily injury by means of physical menace. Physical menace is accomplished through an act or acts which are physically threatening acts.[5] Words alone are insufficient to constitute physical menace.

If you find that the State has proved each element of the offense beyond a reasonable doubt, then you must find the defendant guilty. If, however, you find that the State has failed to prove any element of the offense beyond a reasonable doubt, then you must find the defendant not guilty.



[1] This charge is applicable to an attempt under a substantial step theory. N.J.S.A. 2C:5-1(a)(3). If the facts of the case warrant, the charge should be tailored to address the appropriate attempt theory. See N.J.S.A. 2C:5-1(a).

[2] N.J.S.A. 2C:11-1(b).

[3] See the Model Charge for terroristic threats (N.J.S.A. 2C:12-3b).

[4] If renunciation of criminal purpose is alleged, see N.J.S.A. 2C:5-1(d), that relevant portion of the Model Jury Charge on Attempt should be charged.

[5] The 1971 Model Commentary to the Proposed Criminal Code stated that 2C:12-1(a)(3) codified preexisting New Jersey law. See State v. Drayton, 114 N.J.Super. 490 (App. Div. 1971) and cases cited therein for treatment of how physical menace was interpreted by pre-2C caselaw.

 

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Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

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If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

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Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

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I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

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p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means:
YOU DONT OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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