Tennessee Titans defensive end Bud Dupree recently pled guilty to a lesser assault charge (class B Misdemeanor) in Nashville. Dupree was originally charged misdemeanor (Class A Misdemeanor) assault. While the laws in Tennessee, are different than those in Pennsylvania and New Jersey, this case presents a good opportunity to explain a very common criminal charge that many of our clients in Pennsylvania and New Jersey face. Our criminal defense lawyer often explain the elements of this offense to clients and their families.
Dupree was charged after he allegedly attacked a store employee following a dispute at a convenience store while he was with some friends. Dupree who is 6-4, 269 pounds allegedly grabbed employee and his phone. The employee was allegedly treated for a cut to his forehand and Dupree was later arrested for the assault.
Before the age of smartphones and constant video surveillance, this incident would have probably been disregarded by police but now, everyone has a mobile camera. This camera footage along with the alleged victim’s injuries and his statements was more than enough evidence to charge Dupree.
While Dupree plead guilty to lesser assault charge, prosecutors more than likely could have made their case for a simple assault. Simple assault isn’t an aggravated assault but it is nevertheless a criminal charge in which a person could possibly face jail time.
What is simple assault and why was Bud Dupree charged with it?
Dupree was initially charged with Simple Assault. This is one of the most common offenses that our law firm defends in New Jersey and Pennsylvania Assault is divided into simple and aggravated assault under 2C:12-1 in New Jersey. A simple assault is when a person attempts to cause or purposely knowingly or recklessly causes a bodily injury to another. This is the Bud Dupree case!
A simple assault is also if a person negligently causes bodily person to another with a deadly weapon. Simple assault is a disorderly persons offense unless it is committed in a fight or a scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense in New Jersey. A person can also be charged with a simple assault if he or she recklessly causes a bodily injury to another with a deadly weapon. In this situation, it is a crime of the fourth degree, in New Jersey
In Pennsylvania, a simple assault (Title 18, Section 2701) is graded as a misdemeanor of the second degree unless it is a result of mutual scuffle, in which case it is misdemeanor of the third degree.
Why didn’t the prosecution charge him with aggravated assault?
Since the victim in Bud Dupree’s case was severely harmed from his actions, the matter was not graded as an aggravated assault. Aggravated is a felony charge in Tennessee, similar to Pennsylvania and New Jersey. Unlike a simple assault, an aggravated assault in New Jersey is an indictable crime. A person who is guilty of an aggravated assault after he or she causes or attempts to cause serious bodily injury to another.
An aggravated assault is also cause if a person or knowingly causes bodily injury to another with a deadly weapon. An aggravated assault in New Jersey is a crime of the second degree if the Court finds that a person caused serious bodily injury. It is a crime of the third degree if a person attempts to cause only bodily injury with a deadly weapon. A deadly weapon can be practically anything in New Jersey, just like Pennsylvania. Pennsylvania, similar to New Jersey, classifies aggravated assault (Title 18, Section 2702) based on the circumstances surrounding the incident; it’s a felony grade crime in the Commonwealth
Is a store employee a member of a protected class?
An employee in a convenience store is not a member of protected class. Had Dupree assaulted a police officer, a firefighter, or an EMS person, Dupree would have been charged with an aggravated assault, even though the injuries weren’t serious.
Like Pennsylvania, in New Jersey, if a person commits an assault or attempts to commit an assault against a member of a protective class, like a police office, EMS, or a firefighter, the State (New Jersey) only needs to establish bodily injury as opposed to serious bodily injury. In this situation, a person would be charged with a crime of the third degree (indictable crime.) This distinction is very important.
Maximum Punishments For Crimes & Offenses in New Jersey and Pennsylvania
It is unlikely that Dupree would have faced any jail time even if was convicted of the assault as it was originally charged. His sentencing guidelines would have likely called for a period of probation given his lack of criminal history.
The maximum punishment for a crime of the second degree is ten (10) years of State incarceration and five (5) years of State incarceration for crimes of the third degree. While crimes of the fourth degree carry with them a maximum of punishment of eighteen (18) months of State incarceration. The maximum punishment for a felony of the second degree is 10 years and 7 years for a felony of the 3rd degree. Misdemeanors crimes in Pennsylvania still subject a person to a possible state prison sentence—Misdemeanor of the first degree (5 years); Second Degree (2 years) and 3rd degree (1 year)
Disorderly offenses carry with them a maximum punishment of six (6) months of county incarceration and a $1,000.00 fine, while petty disorderly offenses carry with thirty (30) days of county incarceration and $500.00 fines.
Did Bud Dupree have a self defense argument to this assault charge?
It does not appear that Dupree had any possible self defense argument. At 6-4, 269 lbs, he was likely substantially larger than this employee but his size itself would not defeat a possible self defense argument. It could make the argument much more difficult.
The counter defense argument to an assault of any kind is self defense. Self defense is often a misunderstood concept in criminal defense in Pennsylvania and New Jersey. It is, however, one of the most utilized arguments in cases involving the criminal charges of homicide (murder, manslaughter), attempted homicide, as well as aggravated and simple assault. Frequently, a person comes into our law firm facing these types of charges and wants us to incorporate the self defense argument into our overall criminal defense strategy.
This is obviously a great argument for the defense but it’s important to understand how it requires the defense and the prosecution to meet specific requirements and obligations. Self-defense is often called “justification.” If the defendant’s actions were “justified,” he or she CAN NOT be found find guilty of a crime such as murder, attempted murder (homicide), aggravated assault and simple assault (misdemeanor).
Many of our clients fail to understand that while the burden is on the prosecution during a criminal trial, the defense is required to assert a self defense argument before the prosecution is required to address it. It’s important to understand that the Commonwealth (through the ADA) or the State (Prosecutor) must prove, beyond a reasonable doubt, that the defendant didn’t actually believe that he was in danger of death or serious bodily injury. In the alternative, the prosecution can also meet its burden of proof if it shows, beyond a reasonable doubt, that this belief was unreasonable in light of all the circumstances known to the defendant.
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