Welcome to Spodek Law Group. Our goal is to provide honest legal guidance when you're facing aggravated assault charges in Middlesex County, New Jersey. If you found this page, something happened. Maybe a fight got out of control. Maybe you defended yourself and now you're the one being charged. Maybe an argument escalated and someone got hurt. Whatever brought you here, you need to understand one critical reality that will determine whether you're looking at probation or prison: the difference between second-degree and third-degree aggravated assault isn't just about the number of years. It's about where the judge starts.
That starting point changes everything. Second-degree aggravated assault carries a presumption of incarceration. That means even if you have zero criminal history, even if you're a productive member of society, even if this is completely out of character - prison is the expected outcome. The judge starts from prison and works backward. Third-degree carries a presumption of non-incarceration. First-time offenders are expected to get probation. The judge starts from freedom and works forward. Same crime name on the charging document. Opposite starting points in the courtroom.
This is the reality that separates defendants who go home from defendants who go to state prison. Understanding what pushes a case from one degree to another - and how to fight that characterization - is the difference between rebuilding your life and losing years behind bars.
The Starting Point That Determines Everything
Heres what most people dont understand until theyre already facing charges. When prosecutors charge aggravated assault, they assign a degree: second, third, or fourth. Everyone knows second is worse than third. More prison time possible, higher fines. But thats not what actually matters most.
The degree determines whether the judge STARTS from prison or STARTS from probation.
Second-degree aggravated assault carries what New Jersey calls a "presumption of incarceration." This means even first-time offenders, even people with completely clean records, are presumed to be going to prison. The judge has to find exceptional circumstances to deviate from prison. Your starting point is incarceration. Your defense has to fight backward toward probation.
Third-degree aggravated assault carries the opposite - a "presumption of non-incarceration." First-time offenders are presumed to be getting probation. The judge starts from freedom and has to find reasons to impose prison. Your starting point is going home. The prosecutor has to fight forward toward prison.
Think about what that means. Two people get into the same fight on the same night. One causes "bodily injury." One causes "serious bodily injury." The first gets charged with third-degree. The second gets charged with second-degree. Same fight. Same circumstances. Completley different presumptions. One walks out of court. One walks into state prison.
DECISION MATRIX: Understanding Your Degree
| Degree |
Prison Range |
Fine |
Presumption |
First Offender Outcome |
| Second |
5-10 years |
$150,000 |
INCARCERATION expected |
Prison likely |
| Third |
3-5 years |
$15,000 |
NON-INCARCERATION expected |
Probation likely |
| Fourth |
Up to 18 months |
$10,000 |
No presumption |
Case-by-case |
The difference between "bodily injury" and "serious bodily injury" is the difference between going home and going to prison. The prosecuters characterization of what happened - and more importantly, how they classify the injuries - determines your degree grading.
What Actually Makes Assault "Aggravated" in New Jersey
Lets be clear about the statute becuase this is were alot of confusion starts. Under N.J.S.A. 2C:12-1(b), assault becomes "aggravated" in several ways. Its not just about how badly someone got hurt. The circumstances of the assault matter too.
What Triggers Aggravated Assault:
- Attempting to cause or actually causing "serious bodily injury"
- Causing any bodily injury with a deadly weapon
- Pointing a firearm at someone (even if unloaded)
- Causing injury while showing "extreme indifference to the value of human life"
- Assaulting a protected class victim (police, EMT, teacher, firefighter)
Heres the paradox that catches people off guard. You dont have to actualy hurt anyone for it to be aggravated assault. Point an unloaded gun at someone? Aggravated assault. Swing a bat and miss? Could be aggravated assault - attempted serious bodily injury. The weapon makes it aggravated, not the result.
And heres were it gets even more complicated. Simple assault - a disorderly persons offense handled in municipal court - becomes aggravated assault automaticaly if the victim is a protected class. Punch someone at a bar? Simple assault. Punch an off-duty cop who didnt identify himself? Aggravated assault. Their job upgrades your charge.
You dont have to know theyre a protected class. The upgrade happens based on their occupation, not your knowledge of it.
Protected Classes Under New Jersey Law:
- Law enforcement officers (on or off duty)
- Firefighters
- EMT and EMS personnel
- School teachers and employees
- Transit workers
- Judges and court officers
- Healthcare workers
That list covers alot of people. And if your in a fight with any of them, your looking at felony charges instead of a disorderly persons offense.
The Injury Classification That Sets Your Degree
OK so heres the part nobody explains properly. The grading of your aggravated assault charge often comes down to how prosecutors characterize the injuries. "Bodily injury" versus "serious bodily injury" isnt just medical terminology. Its the legal distinction that determines your presumption.
Under New Jersey law:
Bodily Injury = physical pain, illness, or any impairment of physical condition
- Bruises, cuts, swelling
- Temporary pain
- Minor injuries that heal quickly
Serious Bodily Injury = bodily injury that creates a substantial risk of death, causes serious permanent disfigurement, or results in protracted loss or impairment of function of any bodily member or organ
- Broken bones
- Injuries requiring surgery
- Permanent scarring
- Head trauma
- Injuries that dont heal completley
The distinction sounds medical. But its actualy legal - and prosecutors make the call. A broken nose might be "bodily injury" or "serious bodily injury" depending on how they characterize it. A concussion might go either way. The victims hospital records become the document that helps determine your degree grading.
EARLY WARNING SYSTEM: Signs Your Case Is Being Graded as Second-Degree
Watch for these signals that prosecutors are pursuing second-degree charges:
- The victim required surgery or overnight hospital stay
- Medical records describe "permanent" or "disfiguring" injuries
- You used a weapon (any object used as a weapon counts)
- The prosecutor mentions "serious bodily injury" in any filing
- Your bail was set significently higher than expected
- The prosecutor refuses early plea discussions
- Your case was immediately assigned to Superior Court
If any of these apply, your being treated as a second-degree defendant. The presumption of incarceration applies. You need represention that understands how to fight degree characterization.
When the Victim's Job Upgrades Your Charge
Theres a trap in New Jersey assault law that catches defendants constantley. Simple assault against a regular person is a disorderly persons offense - like a misdemeanor. Municipal court, maximum 6 months, often just probation. But the exact same conduct against certain victims automaticaly becomes aggravated assault.
Let that sink in. Same punch. Same injury. Different victim occupation. Different charge entirely.
Under N.J.S.A. 2C:12-1(b)(5), assault against law enforcement, firefighters, EMTs, and other protected classes is aggravated assault by definition. If the officer is physically harmed, its third-degree. If the officer isnt physically harmed, its fourth-degree. Either way, your now facing a felony.
Heres the part thats genuinly unfair: you dont have to know the victims a protected class. An off-duty cop in plainclothes at a bar? Still protected. An EMT out of uniform grabbing groceries? Still protected. The statute dosent require that you knew who you were dealing with. Their occupation automaticaly upgrades your charge regardless of your knowledge.
MISTAKE CASE STUDIES:
Mistake #1: Not Understanding Protected Class Status
A client got into an altercation outside a New Brunswick bar. Pushing match, no weapons, minor injuries. He expected simple assault charges - disorderly persons offense, municipal court, probation. Instead, he was charged with third-degree aggravated assault. The other guy was an off-duty transit worker. Our client had no idea. The prosecutors didnt care. His job upgraded the charge automaticaly.
Mistake #2: Assuming Injury Severity Would Keep It Simple
Another client defended herself when someone grabbed her in a parking lot in Edison. She pushed him, he fell and hit his head. Minor laceration, a few stitches. She expected self-defense to be obvious. Instead, prosecutors charged second-degree aggravated assault becuase the head wound required stitches and "created risk of permanent scarring." The characterization of injury severity drove the degree.
Mistake #3: Talking to Police
A Woodbridge resident got arrested after a fight at a family gathering. He tried to explain what happened, thinking cooperation would help. Instead, every statement he made about how the fight started became evidence of intent. "I was so angry I couldn't control myself" became proof of purposeful conduct. His words helped prosecutors lock in the degree grading.
NERA: The 85% Rule Nobody Explains
Even defendants who understand the degree system often miss this: both second-degree AND third-degree aggravated assault trigger NERA - the No Early Release Act. This means if your sentenced to prison, you must serve 85% of that sentance before your eligable for parole.
Read that again. This isnt just about second-degree. Third-degree aggravated assault triggers NERA too.
So if your convicted of third-degree aggravated assault and sentenced to 4 years, you serve 3.4 years minimum. No early release for good behavior. No parole after serving half. 85% minimum, period.
What NERA Means in Practice:
| Sentence |
Time Before Parole Eligibility |
| 3 years |
2.55 years (30.6 months) |
| 4 years |
3.4 years (40.8 months) |
| 5 years |
4.25 years (51 months) |
| 7 years |
5.95 years (71.4 months) |
| 10 years |
8.5 years (102 months) |
The difference between probation and even a short prison sentance becomes enormous when NERA applies. This is why fighting the degree characterization matters so much. Its not just about the range of possible sentances. Its about wheather NERA applies at all.
The Defenses That Actually Work in Middlesex County
Lets be honest about defense strategys becuase this is were most articles fail you. Self-defense is the most common defense to aggravated assault charges. But self-defense in New Jersey has specific requirements that must be met.
Under N.J.S.A. 2C:3-4, the use of force is justified in self-defense when you have a "reasonable belief" that force is "immediately necessary" to protect yourself against unlawful force. Both parts matter. Reasonable belief - would a reasonable person in your situation believe force was necessary? Immediately necessary - was there no other option in that moment?
What Self-Defense Requires:
- You didnt start the confrontation (or you withdrew and the other person continued)
- You believed force was necessary to protect yourself
- That belief was reasonable under the circumstances
- The force you used was proportional to the threat
- You couldnt safely retreat (in some situations)
"He started it" isnt enough. "I had no choice in that moment" is closer to what the law requires.
Other Defense Strategies:
Challenging Injury Classification
If the difference between bodily injury and serious bodily injury is borderline, your attorney can fight the characterization. Medical expert testimony about actual injury severity can challenge the prosecutions degree grading.
Suppressing Statements
If you made statements to police without proper Miranda warnings, those statements may be suppressible. Without your words, prosecutors lose evidence of intent and mental state.
Challenging Witness Identification
Bar fights and street altercations are chaotic. Witnesses often misremember or misidentify. Challenging witness reliability can create reasonable doubt.
Consent Defense
If both parties agreed to fight - mutual combat - this can reduce or eliminate criminal liability depending on circumstances.
Todd Spodek has defended clients facing aggravated assault charges throughout Middlesex County. The defense strategy depends entireley on the specific facts: who started it, what injuries occured, what evidence exists, what statements were made.
PTI and Why Degree Grading Matters for Eligibility
Pre-Trial Intervention (PTI) is New Jerseys diversionary program that can result in dismissed charges. Complete PTI successfully and you walk away without a conviction. Its the best possible outcome short of outright dismissal.
But heres were degree grading matters again: PTI eligibility depends on what degree your charged with.
Third-degree and fourth-degree aggravated assault defendants CAN be eligible for PTI (if they meet other criteria). Second-degree aggravated assault involving violence is generally EXCLUDED from PTI eligibility. The No Early Release Act exclusions apply.
This means the degree of your charge doesnt just affect sentancing if convicted. It affects wheather you can even access the diversionary program that could dismiss your case entirely.
PTI Eligibility Factors:
- No prior PTI in any state
- No prior felony convictions
- Charge is eligible (2nd degree violent crimes usually excluded)
- Prosecutor approval (discretionary)
- Court approval (discretionary)
If your charged with third-degree and you qualify, PTI means completing 1-3 years of supervision and walking away without a conviction. If your charged with second-degree, that option probly dosent exist for you. The degree grading determines wheather the best outcome is even theoreticaly available.
Why Middlesex County Cases Move the Way They Do
Heres context specific to this jurisdiction. Middlesex County is one of the busier counties in New Jersey for criminal charges. With over 809,000 residents, major interstate highways like the New Jersey Turnpike and Route 1, and Rutgers University - the states largest college - alot happens here.
In 2016, Middlesex County saw 379 aggravated assault arrests. Thats more than one per day. Your case isnt unusual from the prosecutors perspective. Its one of hundreds they process annually.
The Middlesex County Superior Court Criminal Division has six trial judges plus a presiding judge. Located at 56 Paterson Street in New Brunswick, this is were all indictable offenses from Edison, Woodbridge, Perth Amboy, Piscataway, East Brunswick, Sayreville, Old Bridge, and every other Middlesex municipality end up.
TIMELINE REALITY CHECK:
| Event |
Timeframe |
What Happens |
| Arrest |
Day 0 |
Charges filed, potential detention hearing |
| First Appearance |
Within 48 hours |
Bail/conditions determined |
| Grand Jury |
Weeks to months |
Formal indictment (or not) |
| Arraignment |
After indictment |
Enter plea |
| Discovery |
After arraignment |
Review evidence |
| Motion Practice |
Before trial |
Suppress evidence, challenge charges |
| Trial or Plea |
Months later |
Resolution |
Understanding the volume helps understand the dynamics. High-volume courts mean prosecutors prioritize. Cases with strong defense representation that demonstrate they'll be contested often get more favorable consideration becuase prosecutors cant fight every battle.
The Mistakes That Lock in the Wrong Degree
PROSECUTORIAL DECISION FACTORS: What Influences Degree Charging
Prosecutors in Middlesex County decide early how to grade your aggravated assault charge. Understanding what triggers second-degree versus third-degree charging helps you understand your exposure:
- Severity of documented injuries (medical records)
- Use of any weapon (including improvised weapons)
- Prior criminal history (especially violent offenses)
- Statements you made to police
- Witness accounts of what happened
- Wheather victim is protected class
- Wheather you fled the scene
- Level of apparent premeditation
Every factor on this list can be challenged. Medical records can be recharacterized. "Weapons" can be explained as defensive. Statements can sometimes be suppressed. A defense attorneys job is to contest the degree characterization and force prosecutors to prove there theory beyond reasonable doubt.
The Mistakes That Make It Worse:
- Talking to police - Your statements become evidence of intent and mental state
- Waiting to get legal help - Degree characterization happens early, before you even realize it
- Assuming injury severity is obvious - Its a legal determination, not just medical
- Ignoring protected class issues - The victims occupation matters regardless of your knowledge
- Assuming first offender means probation - Not true for second-degree charges
Call Spodek Law Group Today
Your facing aggravated assault charges in Middlesex County. Maybe your confused about why a fight is being treated like a major felony. Probly your worried about prison time. Definately your wondering how the degree of your charge was determined and wheather it can be changed.
But heres what you need to understand: the degree grading of your charge determines whether you start from prison or start from probation. Second-degree means the judge expects incarceration. Third-degree means the judge expects probation. The difference isnt just sentancing ranges. Its the fundamental presumption that guides your entire case.
Spodek Law Group handles aggravated assault cases throughout Middlesex County - Edison, New Brunswick, Woodbridge, Perth Amboy, Piscataway, and every municipality in the county. We understand how prosecutors characterize injuries, how degree grading works, and how to fight for the characterization that gives you the best chance at the best outcome.
The clock started the moment you got arrested. Degree characterization happens early. Evidence gets locked in. Statements get documented. Every day you wait is a day the prosecutions theory becomes harder to challenge.
Call 888-997-4071 for a consultation. The presumption your facing can be challenged - but only if someone is fighting it.
