Assault Conviction For Off-Duty Police Officer

Newark police officer, Hugo Fierro, was indicted for second-degree official misconduct (N.J.S.A. 2C:30-2), third-degree aggravated assault causing bodily injury (N.J.S.A. 2C:12-1(b)(7)), third-degree aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1(b)(2)); fourth-degree aggravated assault by pointing a handgun at another person (N.J.S.A. 2C:12-1(b)(4)) and second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)) after a an off-duty altercation outside an Essex County bar while out with his wife. He was convicted by a jury of simple and aggravated assault (N.J.S.A. 2C:12-1) and official misconduct and sentenced to 5 years in prison without parole, the minimum for official misconduct under N.J.S.A. 2C:43-6.5.1. Evidence offered at trial indicated that Fierro, while off duty and walking with his wife in the Ironbound section of Newark after dinner and dancing, encountered a group of men drinking on the street and went out of his way to order them to disperse. He next identified himself as a police officer to another intoxicated man and guided him by the arm toward a street to help him obtain a cab. At this time, the victim claimed he approached and Fierro yelled "what's your problem? What's your problem?" and tried to grab the victim. Upon finding himself unable to catch the victim, Fierro withdrew a gun from his side, stated he was a police officer, pursued the retreating victim and hit him in the face with the barrel of the handgun at which time the victim fled. The following day the victim reported the incident and selected Fierro's photo out of a photo array. An outdoor camera had recorded the incident and Fierro was positively identified. However, Fierro testified that, while he was trying to assist an intoxicated man to a cab, the victim approached, would not go away when Fierro asked, twice slapped Fierro's hand when he attempted to create space between them and was acting in a manner which caused Fierro to believe the victim may attack. Fierro claimed that he did not strike the man but did push him away by placing his hands on the victim's chest and pushing him back while holding his gun as he believed the victim may have possessed a weapon. Additionally, an officer who took the victim's report testified that there was no visible damage to the victim's face at the time the report was made. On appeal, in State v. Fierro, the defendant argued that the jury's split verdict demonstrated the juror's lack of understanding of the elements of the charges. The NJ Appellate Division considered Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 461 (1984), State v. Banko, 182 N.J. 44 (2004), State v. Muhammad, 182 N.J. 551 (2005) and others in holding that a split verdict does not definitively indicate that the jury did not fully understand and properly execute its function. The conviction was affirmed on appeal. Assault and attempted assault charges are very serious and bear severe consequences. If you are a police officer or other official, the consequences are even more severe. If you are facing assault charges, you should obtain experienced criminal defense counsel immediately to insure your rights are protected. For more information about assault, illegal possession of a handgun, possession of a weapon for an unlawful purposed or other serious criminal charges in New Jersey, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.