Manhattan Domestic Violence and Assault with a Gun

N.Y. Pen. Law §§ 120.00, 120.05 & 120.10

Under New York law you would have committed the crime of assault if you injure another person without legal justification. There are several different types of assaults, some are misdemeanors and some are assaults. An aggravating factor that will raise the level of serious of an assault is the use of a gun. If you use a gun to assault someone with whom you have some sort of domestic relationship, then the assault is also domestic violence. Examples of domestic relationships include those who are married, dating, have children together, or are roommates. Assault with a gun is considered one of the most serious assault charges because the use of a gun increases the likelihood of serious injury or death to another person. Because assault with a gun usually leaves the victim with painful and permanent physical injuries, the consequences of an assault with a gun conviction are harsh. You could end up spending years in prison and paying substantial fines, fees, and restitution. Thus, if you have been charged with domestic violence based on assaulting someone with a gun it is important that you immediately contact an experienced Manhattan Domestic Violence and Assault with a Gun Lawyer who will review the facts of your case and aggressively defend you until your case is resolved.

Assault with a gun charges

There is no one charge in the New York criminal code called "assault with a gun." Instead, if you use a gun during the commission of an assault you will be charged with either assault in the first degree, assault in the second degree, or assault in the third degree. There are many types of weapons that most people simply call guns such as a pistol, revolver, rifle, shotgun, machine gun or an electronic stun gun. If during an act of domestic violence you use a gun and injure another person, you will face very serious charges that could land you in prison for years.

Assault in the first degree. You will face a change of assault in the first degree if you seriously injure another person or a third person with a deadly weapon such as a gun. Or, with indifference to human life you engage in reckless conduct that results in the death or injury of another person. N.Y. Pen. Law § 120.10. It is a Class B felony. For example, in the case of People v. Rabideau, 918 N.Y.S.2d 247 (2011) defendant Brenda Rabideau was convicted of assault in the first degree based on shooting her husband with a rifle.

Assault in the second degree. Assault in the second degree with a gun is similar to assault in the first degree with a gun. The difference is that with second degree assault you intend to injure another person, while with first degree assault your intent is to seriously injure another person. N.Y. Pen. Law §§ 120.05 and 120.10. Assault in the second degree is a Class D felony.

Assault in the third degree. Assault in the third degree is the least serious assault with a gun crime. It is also referred to as criminally negligent assault. It is a Class A misdemeanor. You will face this crime if with criminal negligence you cause physical injury to another using a gun. N.Y. Pen. Law § 120.00. No intent is required. Criminal negligence is defined as engaging in conduct that significantly deviates from the standard of care that a reasonable person would use in that situation. N.Y. Pen. Law § 15.05(4)

Arrest and Arraignment

If the police suspect that you have assaulted someone with a gun you will be arrested and taken to the local police precinct. At the local precinct your personal information will be taken and you will be fingerprinted. Then you will be taken to Central Booking where you will remain until your arraignment. Within approximately 24 hours of your arrest you will be arraigned. At your arraignment you will learn the exact charges against you. In some cases the charges will be different from what you expected. Based on a review of the evidence, the assistant district attorney assigned to your case may decide to raise or lower the charge, or to add additional charges. You will have the opportunity to plead guilty or not guilty.

At your arraignment you will also learn whether or not bail will be required.

At some point your case may be resolved through plea-bargaining. You and the prosecutor may arrive at a mutually satisfactory compromise that would require you to plead guilty to a lesser crime that would result in a lighter than if you were found guilty of assault with a gun after a trial. Any agreement that you come to with the prosecutor is subject to the approval of the judge.

Defenses to an Assault Charge

Extent of Injury. To sustain any assault with a gun charge, at a minimum the victim must experience a "physical injury." As a physical injury is defined as an impairment of physical condition or substantial pain, any gunshot wound would likely qualify. Even a relatively minor gunshot wound would probably be enough for an assault in the third degree. Other assault crimes such as assault in the first or second degree require that the victim sustain a serious physical injury. This means that the prosecutor's evidence must clearly show that the victim suffered more than a relatively minor "flesh wound." A flesh wound is a wound from a gunshot that breaks the skin but does not damage bones or vital organs. In order for the injury to be considered serious it must be so severe that there was a good possibility that the victim could have died or suffered an extended physical impairment. N.Y. Pen. Law § 10.00(10). If you can show that the victim's injuries were actually not that severe, then you may have a valid defense to assault in the second degree charges.

Self-Defense. New York has a "justification" statute that allows you to use physical force against another person to protect yourself from imminent harm. N.Y. Pen. Law § 35.15. This type of defense is commonly called a "self-defense." In a domestic violence situation, it is not unusual for one person to assault the other person in an attempt to protect him or herself or to protect another person such as a child, parent or sibling. However, typically a justification defense will not help you unless the other person initiated the violence and not you. In addition, you cannot use more force than is reasonably necessary to protect yourself.

Consequences of an Assault Conviction

Prison. Whether you are incarcerated for an assault with a gun conviction depends on the specific charge of which you are convicted, your criminal record, and the specific facts of your case. A conviction for misdemeanor assault in the third degree will result in a far less severe sentence than a conviction for felony assault in the first degree. In most cases for a conviction of assault with a gun, you will be sentenced to prison. In addition, if you have a criminal record that includes at least 1 prior felony conviction within the past 10 years, you will receive a harsher sentence than if you had no prior convictions.

  • Assault in the third degree. Class A misdemeanor. The maximum possible sentence is up to 1 year in jail. N.Y. Pen. Law § 70.02. While those convicted of misdemeanors often are not sentenced to jail if you have a prior criminal history jail is likely to be part of your sentence. In People v. Hick, 924 N.Y.S.2d 311 (2010) defendant Simon Hick pleaded guilty to assault in the third degree based on throwing his son from a porch, resulting in a broken bone and dislocated joint. While Hick could have received a probation sentence, because of Hick's long, violent criminal history, the prosecutor and the court felt that a sentence of 120 days in jail was appropriate.
  • Assault in the second degree. Class D felony. The maximum possible sentence is 7 years in prison. N.Y. Pen. Law § 70.02. Because assault in the second degree is also classified as a violent felony, the judge is required to impose a minimum sentence of 2 years in prison. Even if you have no prior convictions, then the minimum prison sentence you will receive is 2 years. The court will not have the option of sentencing you to no prison time. If your status is that of a non-violent predicate offender, then the court will sentence you to at least 3 years for an assault in the second degree conviction, while if you are a violent predicate offender, you will be sentenced to at least 5 years in prison. If you are a persistent felony offender, then the minimum sentence you will receive is 12-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08. Upon release you will be required to serve a term of post-release supervision.
  • Assault in the first degree. Class B felony. The maximum possible sentence is 25 years in prison. N.Y. Pen. Law § 70.02. Because assault in the first degree is classified as a violent felony, the judge is required to impose a minimum sentence of 5 years. The length of your prison sentence will depend on factors such as your prior criminal record. You will be classified based on your prior criminal record. Even if you have no prior convictions then the minimum sentence you will receive is 5 years in prison. The court will not have the option of sentencing you to no prison time. If your status is that of a non-violent predicate offender, then the court will sentence you to at least 8 years for an assault in the first degree conviction, while if you are a violent predicate offender, you will be sentenced to at least 10 years in prison. For example, in People v. Miller, 062014 NYAPP4, 2014-04641 (June 20, 2014), defendant Damien Miller was convicted of assault in the first degree. Because he was also convicted of burglary in the second degree Miller was sentenced as a predicate violent offender for the first degree assault conviction. He was sentenced to 15 years in prison.
Fines, Fees and restitution

There are several financial consequences to committing a domestic violence related crime. The judge may order you to pay a fine of up to $1,000 for a misdemeanor conviction or up to $5,000 for a felony conviction.

You will also be required to pay certain fees including a "mandatory surcharge" of $300 for felonies and $175 for misdemeanors as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If you are convicted of a sex crime then there are additional fees, including a sex offender registration fee. You may also be required to pay fees related to probation and post-release supervision of $30 per month.

Another financial consequence is that you may be ordered to pay restitution to the victim. Generally, the maximum amount of restitution is $15,000 for felonies and $10,000 for misdemeanors. However, the restitution may be considerably more as medical expenses for knife wounds can be significant and the court may require you to pay those expenses.

Failure to pay a fine, fee or restitution may result in your being charged with a misdemeanor and sent to prison for up to a year, your wages being garnished or a judgment being filed against you. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Probation and Post-Release Supervision

if you are convicted of domestic violence and assault with a gun part of your sentence will include probation or post-release supervision of between 1.5-5 years. There will be several rules that you must follow while you are on probation or post-release supervision such as:

  • You must not commit a crime
  • You must not associate with people who have felony criminal records
  • You must not patronize unlawful or disreputable places
  • You must not used controlled substances
  • You must submit to drug testing
  • You must consent to warrantless searches
  • You must submit to home visits by your Probation or Parole Officer
  • You must regularly report to your Probation or Parole Officer
  • You cannot leave the State of New York without permission
  • You must not purchase, own, possess a gun
  • You must not consume alcohol
  • You must follow a curfew
  • You must have job or be enrolled in school

If you violate any of the terms of your probation or post-release supervision, you will have to appear before a judge at a revocation hearing. If after hearing evidence the judge concludes that you are in violation the judge could sent you to prison.

Orders of Protection

If you are charged with assaulting someone you are in a domestic relationship with, a judge may issue an Order of Protection against you. The Order of Protection may be issued by a criminal court judge or from family court. In either case, the Order of Protection will be very specific as to what you can and cannot do. For example, it may require you to stay away from the victim's home, school, or place of business. This means that if you live with the victim, the order may exclusionary, requiring you to move. If you have children with the victim, you may be ordered to pay child support. If you violate an Order of Protection, you could face additional criminal charges. Based on the outcome of the assault with a gun charges against you, the Temporary Order of Protection may become a Final Order of Protection, meaning that it may remain in place for a number of years. However, if you do not believe that an Order of Protection is warranted, then there are ways to fight such an order to get it vacated.

Additional criminal charges

If you are arrested for shooting someone, assault with a gun will likely not be the only criminal charge you face. Depending on the facts of your case, you may also be charged with criminal possession of a weapon, reckless endangerment, child endangerment, sexual assault, manslaughter, or homicide. Any additional charge could result in an addition conviction. You will receive an additional sentence based on the additional conviction.

Long-Term Consequences

Even if you are convicted of only a misdemeanor assault with a gun charge and receive a sentence that includes little or no jail time, there will be additional consequences. You will have a criminal record that will make several aspects of your life more challenging such as getting a job. In addition, you will be barred from working in certain professions such as being a teacher, lawyer, or security guard. In addition, you will no longer to be able to own a gun in the future, serve in the military, or serve on juries. Some schools may refuse admission or ban you from living on campus. You will also not be able to receive certain government benefits such as welfare or federally funded housing. Furthermore, a felony conviction may cause you to lose custody of your children or restrict the visitation arrangement. If you are not a U.S. citizen, you may be subject to deportation.

There are many emotions that accompany being accused of domestic violence. In many cases not only is your freedom at risk, but your relationship with members of your family may also be at risk. However, it is important to understand that even though you have been arrested, there may be a variety of ways to reach a favorable resolution to your case. Thus, if you have been arrested for assault with a gun, it is important to immediately contact someone who understands the New York criminal system and who also understands the intricacies of domestic violence cases. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with assault with a gun, as well as other assault crimes, menacing, reckless endangerment, stalking, rape, and child endangerment. Furthermore, we also represent clients fighting Orders of Protection. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of domestic violence in the following locations:

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