Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Monday, June 19, 2017


The grand jury indicted defendant in a single count charging her with aggravated assault by throwing a bodily fluid, N.J.S.A. 2C:12-13, which provides,
A person who throws a bodily fluid at a . . . law enforcement officer while in the performance of his duties or otherwise purposely subjects such employee to contact with a bodily fluid commits an aggravated assault. If the victim suffers bodily injury, this shall be a crime of the third degree. Otherwise, this shall be a crime of the fourth degree.
The State alleged defendant spat at another inmate, and it landed on a corrections officer.
Defendant moved to dismiss the indictment, arguing the prosecutor failed to charge the grand jury regarding the statute's requisite mental state and failed to present clearly exculpatory evidence that negated her guilt. State v. Hogan, 144 N.J. 216, 237 (1996). This evidence included statements of inmates and the disciplinary report of the investigative corrections officer, which confirmed that defendant intended to spit at a fellow inmate, not the officer.
The judge denied the motion to dismiss, concluding the evidence did not meet the standard enunciated in Hogan, but he did not resolve what mental state was required under the statute or
page3image19128 page3image19288

whether the prosecutor's instructions were appropriate. Defendant thereafter pled guilty.
The court concluded the State must prove that defendant acted purposely, and that the doctrine of transferred intent, N.J.S.A. 2C:2-3(d), cannot elevate the act of spitting, even if an offense under the Criminal Code, into an aggravated assault, unless the officer was the intended target. See, e.g., State ex rel S.B., 333 N.J. Super. 236, 244-45 (App. Div. 2000). Defendant's motion to dismiss should have been granted because the prosecutor failed to inform the grand jurors of the requisite culpable mental state.