Nassau County Assault

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

Assault is a criminal offense related to intentionally or recklessly causing physical harm to another person. There are several different types of assault charges in New York Penal Law. There are special assault charges related to assaulting children, sexual assault, or using a vehicle to commit an assault. The assault charge will be more serious if you used a deadly weapon or dangerous instrument such as a gun, knife, or car. If during the assault you seriously injured the victim, you will be charged with a more serious assault offense. Furthermore, if your victim is in a protected class such as a police officer, paramedic, prosecutor, person over the age of 65 or person age of 11 or younger, the crime will be considered more severe. If you are convicted of assault the not only may you end up in prison, you will also be required to pay a significant amount of money in fines, fees, and restitution. Furthermore, you will end up with a criminal record that will negatively impact several aspects of your life. Because of the consequences of an assault conviction, if you have been charged with any type of assault it is critical that you speak with an experienced Nassau County Assault Lawyer who will listen to the facts of your case and who will aggressively defend you against the charges.

Types of Assault

New York criminal law includes a number of different assault-related offenses. Each offense is different based on the type of victim, whether a weapon was used, how the assault was accomplished, and how many people were involved in the assault. For example, there are offenses related to simple assault, assault using a vehicle, assault where a child is the victim, gang assault, sexual assault, and assault where the victim is a police officer or a judge. .

Assault. There are 3 degrees of assault: assault in the third degree, assault in the second degree and assault in the first degree. N.Y. Pen. Law §§ 120.00, 120.05 and 120.10

Assault in the third degree is a Class A misdemeanor. Of all of the assault charges, assault in the third degree is the least severe. To be charged with assault in the third degree you must have intended to cause physical injury to another person, and you must have in fact caused injury to that person or to a third person. Furthermore, if you recklessly cause physical injury to another person, or if with criminal negligence you caused physical injury to another person using a deadly weapon you will be charged with assault in the third degree. N.Y. Pen. Law § 120.00

Assault in the second degree is a Class D felony. There are several different factors that if present would raise an assault from assault in the third degree to the level of assault in the second degree. For example, if you intended for the victim to suffer a serious physical injury and the victim did indeed suffer a serious physical injury as a result of the assault, you could face a charge of assault in the second degree. N.Y. Pen. Law § 120.05. New York law has a very specific definition for the term "serious physical injury." It is defined as an injury that creates a substantial risk of death, that causes death, or that causes serious disfigurement or impairment. N.Y. Pen. Law § 10.00(10). For example, a bruise to the leg that disappeared after a few days would not be a serious physical injury while a traumatic brain injury that required surgery would be a serious physical injury.

Another factor that could raise an assault to the level of assault in the second degree is if you used a deadly weapon or dangerous instrument. The statute lists several weapons that are classified as deadly weapons. Most of these items are types of guns, knives, or knucklebusters. A dangerous instrument is defined as any object that could be used to cause serious physical injury. N.Y. Pen. Law § 10.00(13). For example, while a hammer is typically considered to be tool, if you use it to hit someone on the head, then you would have used it as a dangerous instrument.

If you assault a police officer, nurse, firefighter, paramedic, prosecutor or any other official, you will at a minimum face a charge assault in the second degree if that assault prevented the official from performing his or her official duties.

Furthermore, if you assault a person who is 65 years old or older and you are more than 10 years younger than that person, or you assault a person who is 11 years old or younger and you are at least 18 years old, you will face a second degree assault charge.

Assault in the first degree is a Class B felony. It is one of the most serious assault charges. If you assault someone with a deadly weapon or dangerous instrument and cause serious physical injury you will be charged with assault in the first degree. Or, if with depraved indifference to human life you put another person at risk of death and in doing so you seriously injured that person, you will be charged with assault in the first degree. The final way that you could face this charge is if while committing a felony you caused serious injury to another person.

Reckless assault of a child is a Class D felony. This type of assault involves assaulting a child who is less than 5 years old in a way that the child suffers what is commonly referred to as shaken baby syndrome. Such an assault occurs by shaking, slamming, or throwing a child. N.Y. Pen. Law § 120.02. This is exactly what happened in the case of People v. Marsh, 954 N.Y.S.2d 474 (2012). Defendant Arlene Marsh was charged with reckless assault of a child after throwing a 15 month old child in a crib, causing her to hit her head. The child suffered brain damage.

Reckless assault of a child by a Day Care Provider is a Class E felony. This offense is meant to punish day care providers who injury children by shaking them. If you are an owner or employee of a day care provider and you seriously injure a child who is less than 11 years old by shaking that child, you will be charged with reckless assault of a child by a day care operator. N.Y. Pen. Law § 120.01. It is important to note that the standard for reckless assault of a child by a day care provider is different from the standard for reckless assault of a child.

Vehicular assault in the second degree is a Class E felony. You will face a charge of vehicular assault in the second degree if you drive a car or other type of vehicle while under the influence of drugs or alcohol and seriously injure another person. N.Y. Pen. Law § 120.03

Vehicular assault in the first degree is a Class D felony. A vehicular assault in the second degree will be raised to the level of vehicular assault in the first degree if one of the following aggravating factors exists.

  • You have a blood alcohol level of at least .18
  • You have a license that was suspended or revoked in another state
  • You have a prior conviction for operating a motor vehicle while under the influence of alcohol or drugs
  • You cause serious injury to more than one person
  • You have a prior conviction for vehicular assault
  • You have a prior conviction of vehicular homicide
  • You have a child who is 15 years old or younger in the car with you

N.Y. Pen. Law § 120.04

Aggravated vehicular assault is a Class C felony. You will face a charge of aggravated vehicular assault if you commit the crime of vehicular assault in the second degree while driving recklessly, and you also

  • have a blood alcohol level of at least .18
  • have a license that was suspended or revoked in another state
  • have a prior conviction for operating a motor vehicle while under the influence of alcohol or drugs
  • Cause serious injury to more than one person
  • Have a prior conviction for vehicular assault
  • Have a prior conviction of vehicular homicide
  • Have a child who is 15 years old or younger in the car with you

N.Y. Pen. Law § 120.04-a

Gang assault is a type of assault that involves at least 3 people assaulting or aiding in the assault of another person. No actual "gang" affiliation is required for this charge. Gang assault in the second degree is a Class C felony. You will face this charge if you have the intent to cause injury to another person and you in fact cause serious physical injury to another person with the aid of at least 2 other people. N.Y. Pen. Law § 120.06. Gang assault in the first degree is a Class B felony. The different between second and first degree gang assault is that with gang assault in the second degree you intend to cause a physical injury, while with first degree gang assault you intend to cause a serious physical injury. N.Y. Pen. Law § 120.07

Sexual assault is a general term to describe several different sex offenses described in New York's sex crime statute, including forcible touching, sexual abuse, criminal sexual act, sexual misconduct, sexual conduct against child, female genital mutilation, and facilitating a sexual offense with a controlled substance.

Consequences of an Assault Conviction

If you are convicted of an assault crime, your sentence may be incarceration, a fine, probation, post-release supervision or a combination of these punishments. Whether or not you are sent to jail depends largely on the seriousness of the crime of which you are convicted and your prior criminal record.

Prison and Fines
  • Class A misdemeanor. The maximum possible sentence is 1 year in jail and a fine of up to $1,000. The following assault offense is a Class A misdemeanor: assault in the third degree.
  • Class E felony. The maximum possible sentence is 4 years in prison and a fine of up to $5,000. The following assault offenses are Class E felonies: reckless assault of a child by a child day care provider, aggravated assault upon a person less than eleven and vehicular assault in the second degree.
  • Class D felony. The maximum possible sentence is 7 years in prison and a fine of up to $5,000. The following assault offenses are Class D felonies: assault in the second degree, reckless assault of a child, and vehicular assault in the first degree.
  • Class C felony. The maximum possible sentence is 15 years in prison and a fine of up to $15,000. The following assault offense is a Class C felony: gang assault in the second degree
  • Class B felony. The maximum possible sentence is 25 years in prison and a fine of up to $30,000. The following assault offenses are Class B felonies: assault in the first degree and gang assault in the first degree.

When the judge decides on your sentence, the judge will consider your prior criminal record. If you have a prior criminal conviction, in general sentencing guidelines require that the judge sentence you to prison for at least a minimum amount of years. That minimum will increase if your prior conviction was for a violent felony or if you have at least 2 prior felony convictions.

Probation

If you are convicted of assault your sentence may include probation. The term of probation will be 3 years for a misdemeanor conviction or 5 years for a felony conviction. For sex offenses the probation terms are twice as long. If your sentence includes both prison and probation, you will serve the terms concurrently. For example, if you are sentenced to a prison sentence of 30 days for a misdemeanors assault charge, and you are also sentenced to 3 years probation, you will serve the first part of your probation term while you are in jail. Once you are released, you will have to serve the rest of your probation terms. This means that you will have an additional 3 years less 30 days of probation once you are out of prison.

While serving your probation sentence you will be subject to many rules. If you break any of the rules a judge could revoke your probation and resentence you to prison. The rules will include that you cannot commit another crime, you must have a job, you must not associate with disreputable people, you must not patronize disreputable places, you must not drink alcohol excessively, you must not use illegal drugs, and you must support your family. In addition, you will be required to report to your probation officer on the regular basis.

Post-Release Supervision

Your sentence may also include a term of post-release supervision of up to 5 years. Like probation, while you serve your term of post-release supervision there will be several rules that you must follow. If you violate any of the terms of your post-release supervision you will receive a revocation hearing before a judge. Based on the evidence presented, the judge may allow you to continue with the post-release supervision with the terms undisturbed, require you to go back to jail for a period and then return to post-release supervision status, or require you to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Restitution

As part of your sentence the judge may order to you pay restitution. Restitution is paid to the victim to cover out-of-pocket expenses that result from your crime. For example, if you injure victim the court may order you to pay the victim's medical expenses. Generally, the maximum amount of restitution is $10,000 for a misdemeanor offense and $15,000 for a felony offense. However, the law allows a judge to order you to pay a greater amount of restitution if, for example, the victim's medical expenses exceed the general statutory limit.

Fees

In New York if you are convicted of a stalking in the first degree you will be required to pay certain statutory fees. One fee is a $175-$300 "mandatory surcharge." You may also be required to pay a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If you are placed on probation, you will have pay probation supervision fees of $30 per month. If you are convicted of a sexual assault you will be required to pay a sex offender registration fee as well as other fees associated with a sex crime conviction.

Order of Protection

As part of the criminal process the prosecutor may request and the judge may grant a Temporary Order of Protection in favor of the victim. An Order of Protection is designed to keep the victim safe by limiting your actions. For example, an Order of Protection may state that you are not permitted to go near the victim, the victim's children and the victim's place of employment. If you live with the victim, you may be ordered to move.

The Order of Protection will be temporary, lasting until your next court date. At that time the Order of Protection may be renewed. If ultimately you are acquitted of the assault charge, the Order of Protection may be dismissed. If, on the other hand, you are convicted, the Order of Protection may become permanent, lasting for several years.

If you have been accused of assault it is important that you immediately seek experienced legal guidance. If you the charge is only a misdemeanor, the potential consequences of being convicted of assault involves incarceration, a fine, fees, restitution and having a criminal record. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with crimes such as assault, menacing, reckless endangerment, stalking, rape, and child endangerment. 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 assault in the following locations:

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