New Jersey Strangulation Assault Defense Attorneys

The New Jersey Aggravated Assault Stangulation Law

The modification of the aggravated assault law that made it a second-degree crime to violate N.J.S.A. 2C:12-1(b)(13) was enacted in recognition of the strong correlation between domestic violence-related homicides and a prior history of strangulation. While the intention of the law is to deter conduct of this nature and protect victims who have been choked or strangled by incarcerating their perpetrators, we have noticed a huge uptick in domestic violence cases involving allegations of choking, which we suspect is the result, at least in part, of either misapplication of the law or trumped-up charges. The law is supposed to apply solely where someone:

[k]nowingly or, under circumstances manifesting extreme indifference to the value of human life, recklessly obstructs the breathing or blood circulation of a person who, with respect to the actor, meets the definition of a victim of domestic violence, as defined in subsection d. of section 3 of P.L.1991, c. 261 ( C.2C:25-19 ), by applying pressure on the throat or neck or blocking the nose or mouth of such person, thereby causing or attempting to cause bodily injury.

Elements Of N.J.S.A. 2C:12-1(b)(13)

There are three (3) elements of proof that the prosecutor must establish in order to secure a conviction under subsection 13 of N.J.S.A. 2C:12-1b. They must prove, beyond a reasonable doubt, that:

1. The defendant obstructed the breathing or blood circulation of the victim;
2. His/her conduct was knowing or under circumstances manifesting extreme indifference to the value of human life; and
3. That the victim meets the definition of a victim of domestic violence.

First Element
The first thing the state must prove is that the breathing or blood circulation of the victim was obstructed. This requirement is typically established through testimony from the victim that he/she was being choked or photographs depicted abrasions to the neck.

Second Element
The accused must act knowingly or under circumstances of extreme indifference to sustain a conviction for strangulation assault. Conduct is knowing when it is practically certain that it would produce a particular result. For purposes of this discussion, what it means is that it must have been practically certain that the defendant’s actions would obstruct the breathing of the victim. This second element can also be met if the defendant causes the obstruction in conscious disregard of a substantial and unjustifiable risk that there would be a negative impact on the victim’s ability to breathe. There must be a probability as opposed to a mere possibility that the victim’s breathing would be obstructed in order for the conduct to be “under circumstances manifesting extreme indifference to the value of human life.”

Third Element
An individual qualifies as a domestic violence victim and fulfills the third element of proof if they are or have been the wife, husband, boyfriend, girlfriend, household member, or someone the accused dated.

Penalties for Strangling Another Person in New Jersey

The standard penalties imposed at the time of sentencing for second-degree aggravated assault include 5-10 years in state prison and a fine of up to $150,000. You should also know that N.J.S.A. 44-1d imposes a presumption of imprisonment that can only be overcome where the court finds that, given the character and condition of the defendant, a serious injustice would be committed if he/she were incarcerated.

There are also parole restrictions that are triggered when someone is sentenced for violating 2C:12-1b(13) since the offense falls under the No Early Release Act (“NERA”).  This Act renders an individual ineligible for parole until he/she has served 85% of the sentence imposed. What this means is that if you are sentenced to ten (10) years, you cannot be considered for release on parole until you have served at least 8.5 years in prison.

Pretrial Intervention, Drug Court & Veteran's Diversion in NJ Strangulation Cases

There are several diversion programs that allow a defendant to avoid imprisonment and other penalties, and even a criminal record in some cases. Pretrial Intervention Program (“PTI”) is certainly the most popular of these vehicles. Unfortunately, an individual is ineligible for PTI for several reasons when they are facing a strangulation aggravated assault charge in New Jersey. First and foremost, second-degree crimes are ineligible for PTI. Second, PTI is not supposed to be utilized in instances of domestic violence. The only way someone can overcome this ineligibility is to secure prosecutor consent for an application. This is where an attorney who is highly skilled, respected, and familiar with the court system can be very handy.

Drug Court is another diversionary program that allows someone to avoid imprisonment. This is unfortunately unavailable to those charged with crimes of violence such as aggravated assault for choking someone. Similar objections are often raised when someone applies for Veteran’s Diversion or Mental Health Diversion.

Initial Appearance, Motion to Detain & Pretrial Release in 2C:12-1b(13) Cases

A criminal charge under 2C:12-1b(13) is typically filed on a warrant complaint. This type of pleading mandates the arrest of the accused,  processing and transfer of custody to the county jail, and then a first appearance in the Superior Court within forty-eight (48) hours.

The prosecution commonly files a motion to detain prior to the initial appearance in strangulation aggravated assault cases. This results in an automatic adjournment of proceedings for at least three (3) additional days.

The next appearance is referred to as a Detention Hearing where the prosecutor and your defense make arguments as to why you should or shouldn’t be afforded pretrial release. The judge must decide whether the accused should be afforded release on conditions or remain in custody until the conclusion of the case.

Retraining Order Issued As A Result Of Domestic Assault

A former or current spouse, boyfriend/girlfriend, or household member can apply for a temporary restraining order based on allegations that they were choked. While this form of relief is civil in nature, it nevertheless has the potential to seriously impact the life of the accused because it creates a legal bar to speaking with the complainant, returning to any shared residence, or being in the same general vicinity of the accuser.

Failure to comply with the terms of a restraining order results in a separate fourth-degree charge for criminal contempt. It is therefore extremely important to comply with the terms of a temporary restraining order and to focus on winning your final restraining order hearing so that the restraints are extinguished. This proceeding typically takes place within two (2) weeks of issuance of the temporary order.

Defending Domestic Strangulation Charges

As one of the largest criminal firms in New Jersey, we have occasion to defend countless aggravated assault cases involving allegations of choking or other forms of obstruction to breathing. It is clear to the criminal lawyers at our firm that this offense arises far too often and is unquestionably over-charged. We believe that the skyrocketing of cases is attributable to two factors, opportunistic “victims” making up allegations of this nature to gain an upper hand or be malicious and, second, police officers who are quick to prompt and/or bring strangling into a domestic violence case. Having an attorney at your side who is savvy to the double standard that can exist, not to mention how to effectively defend these types of aggravated assault cases, is imperative in overcoming a 2C:12-1b(13) offense. This is what our New Jersey criminal lawyers will do for you, including utilizing the following on your behalf.

1. Attack The Allegations. There is certainly a percentage of cases where the state just cannot substantiate the required elements of proof needed to obtain a conviction; remember, the state must present proof beyond a reasonable doubt.
2. Raise Meritorious Credibility Issues. Given the fact that most domestic violence-related cases are one person’s word against the others (i.e. “He said, she said”), it is imperative to scrutinize the credibility of the complainant, pointing out every inaccuracy and inconsistency in their story.
3. Counterbalance Victim Motivation. While the criminal complaint is controlled by the victim, his/her participation in the proceedings is imperative in most cases. Unless there is video evidence, third-party witnesses, or the accused admitted to the assault, any prior statements of the victim are hearsay.
4. Obtain Prosecutor Consent For PTI. As a general rule, someone charged with a second-degree crime is ineligible to apply for Pretrial Intervention. A defendant can, however, apply and be granted this diversion if they get prosecutor consent. Our defense attorneys have the experience and persuasiveness to provide clients with the best chance of securing PTI in a choking, strangling, or airway obstruction assault case.
5. Persuasively Negotiate.

Frequently Asked Questions