Nassau County Assault on a Police Officer

N.Y. Pen. Law §§ 120.05, 120.11

Almost any time that a police officer is injured in the line of duty it makes headlines. Police officers have dangerous, difficult jobs. They are entrusted with the huge responsibility of keeping our communities safe. Because of this any violence against police officers is considered very serious. If you assault a police officer you will face a violent felony charge. Not only will other police officers be eager to arrest you, the prosecutor will aggressively try to make sure that you are convicted and receive a harsh punishment. The punishment for being convicted of assault on a police officer is going to prison for a minimum of 2 years and possibly many more years. In addition, if you are convicted you may face steep fines, fees and restitution, and you will have a criminal record for the rest of your life. However, in many cases where someone is accused of assaulting a police officer the facts are not at all as clear as the prosecutor thinks they are. There may be defenses to an assault on a police officer charge that may result in the charges being dropped or reduced. Thus, if you have been charged with assault on a police officer it is important that you immediately contact an experienced Nassau County Assault on a Police Officer Lawyer who will explain to you your legal options and work hard to make sure that your rights are protected throughout the criminal process.

Definition of Assault on a Police Officer

There are three different felony assault offenses related to assaulting a police officer: assault in the second degree, assault on a police officer, and aggravated assault on a police officer.

  • Assault in the second degree. Assault in the second degree is the least serious assault on a police officer crime. However, it is still a felony. You will face this charge if you attack a police officer in order to prevent that officer from doing his or her job and in the process you physically injure the officer. N.Y. Pen. Law § 120.05. It is a Class D felony. For example, in People. v. Harley, 905 N.Y.S.2d 617 (2010) defendant Linda Harley was convicted of assault in the second degree based on hitting a police officer's hands with a club auto-theft device. The officer was in the process of attempting to unlock Harley's car door after she committed several traffic violations.
    It is important to note that New York law has a very specific definition of "physical injury." It is more than a little scratch or a fading bruise. A physical injury is one that causes a physical impairment or substantial physical pain. N.Y. Pen. Law § 10.00(9)
  • Assault on a police officer. If you assault a police officer and cause that officer to suffer a serious physical injury, then you will be charged with the more serious offense of assault on a police officer. N.Y. Pen. Law § 120.08. The difference between an assault in the second degree charge and an assault on a police officer charge is the type of injury that the police officer receives. If it is painful, but not life-threatening, then the charge will be second degree assault. If the injury is so serious that it is life-threatening, then the charge will be assault on a police officer. Assault on a police officer is a Class C felony.
    An important element of the assault on a police officer offense is that when you assaulted the police officer the officer had to have been performing his lawful duty. If, for example, the officer pulled you over without having a lawful reason to do so, and you ended up attacking the officer, causing him to suffer a serious physical injury, while you may be charged with assault, you could not be charged with assault on a police officer. This is exactly what happened in the case of the People v. Hurdle, 965 N.Y.S.2d 626 (2013). Defendant Walter Hurdle was convicted of assault on a police officer based on having intentionally hit a police officer with an SUV, causing the police officer to suffer severe injuries. However, on appeal the conviction was overturned because when the police stopped Hurdle they did not do so for a lawful reason. The requirement that the police officer must have been in the process of performing his lawful duty was not met.
  • Aggravated assault upon a police officer or a peace officer. You would have committed this crime if you use a deadly weapon or a dangerous instrument to intentionally seriously injure a police officer who was attempting to perform his official duties. You must have used a deadly weapon or dangerous instrument to commit the assault. N.Y. Pen. Law § 120.11. It is a Class B felony. New York's criminal statute gives several examples of what is considered a dangerous weapon: means any loaded weapon from which a shot may be discharged, a knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles. N.Y. Pen. Law § 10.00(12). A dangerous instrument is defined as anything that is capable of causing death or serious injury. A vehicle is one example of a dangerous instrument. N.Y. Pen. Law § 10.00(13). However, there are many other things that may be considered a deadly weapon or dangerous instrument. In People v. Plunkett, 907 N.Y.S.2d 919 (2010) the defendant was convicted of aggravated assault upon a police officer based on being HIV positive and biting a police officer who was attempting to arrest him.
Defenses to an Assault Charge

Type of Injury. To be convicted of assault on a police officer, the injury cannot be slight. For a second degree assault charge based on assaulting a police officer the injury must cause the victim substantial pain or physical impairment. For assault on a police officer or aggravated assault upon a police officer the injury must be serious- presenting a substantial risk of death. If the injury is not as serious as the statute requires, then you have a valid defense to an assault on a police officer charge.

Lawful duty. In order to be convicted of an assault of a police officer offense, you must have assaulted the officer while that officer was attempting to perform his or her lawful duties. For example, in People v. Hurdle, the defendant was ultimately acquitted of the charge of assault on a police officer because despite the fact that the defendant did assault the police officer. The police officer had not stopped and questioned the defendant based on lawful police procedure. However, even if the facts do not support a conviction of assault on a police officer, you may still be found guilty of another assault offense.

Consequences of an Assault on a Police Officer Conviction

If you are convicted of assault on a police officer your sentence will include prison, payment of fines, fees, and restitution, and post-release supervision.

Prison

The actual length of your prison sentence will depend not only on the offense of which you are convicted but also on your prior criminal record. Based on your criminal record, you will be labeled as follows:

  • No Prior Convictions: You do not have any felony convictions within the last 10 years.
  • Non-Violent Predicate Offender: You have a non-violent felony conviction within the last 10 years.
  • Violent Predicate Offender: You have a violent felony conviction within the last 10 years.
  • Persistent Felony Offender: You have at least 2 prior felony convictions.

Assault in the second degree is a 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 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. Part of your sentence will also include a term of post-release supervision.

Assault on a police officer is a Class C felony. The maximum possible sentence is 15 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 3.5 years in prison. Even if you have no prior convictions you will be sentenced to at least 3.5 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 the court will sentence you to at least 5 years for an assault in the second degree conviction, while if you are a violent predicate offender you will be sentenced to at least 7 years in prison. If you are a persistent felony offender 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 from prison you will have to serve a term of post-release supervision.

Aggravated assault upon a police officer is a Class B felony. The maximum possible prison sentence is 25 years. N.Y. Pen. Law § 70.02. Because aggravated assault upon a police officer is classified as a violent felony, the judge is required to impose a minimum sentence of 5 years. Even if you have no prior convictions then the minimum sentence you will receive is 5 years in prison. If your status is that of a non-violent predicate offender, then the court will sentence you to at least 8 years, while if you are a violent predicate offender, you will be sentenced to at least 10 years in prison. If you are a persistent felony offender, then the minimum sentence you will receive is 20-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08. If you are released you will have to serve a term of post-release supervision.

Post-Release Supervision

Because all assault on a police officer offenses are violent felonies, if you are convicted of any such offense part of your sentence will also include a term of post-release supervision of 1.5-5 years. N.Y. Pen. Law § 70.45. There will be several rules that you must follow while you are on post-release supervision. Such rules vary from person to person based on what the Department of Corrections determines is needed to ensure a smooth, crime-free transition from prison back into the community. Common rules include:

  • You must not commit a crime-- not even a misdemeanor
  • You must not hang out with other people who have criminal records
  • You must not patronize places known for illegal activity
  • You must not use or possess illegal drugs
  • You must consent to warrantless searches
  • You must submit to home visits by your Parole Officer
  • You must regularly report to your Parole Officer
  • You cannot leave the State of New York without permission.
  • You must not own, possess or purchase a gun
  • You must stick to a curfew
  • You must have job or be enrolled in school.

If you violate any of the terms of your post-release supervision you will receive a revocation hearing. Based on the evidence presented, the outcome of such a hearing may be that your post-release supervision status is undisturbed, you will be required to go back to jail for a period and then back on post-release supervision status, or you may be required to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Fines, Fees and Restitution

There are substantial financial consequences to being convicted of assault on a police officer including paying a fine, fees, and restitution. For a felony assault on a police officer conviction in addition to being sentenced to prison you may also be required to pay a fine of up to $5,000. Furthermore, you will be required to pay certain fees including a fee that is called a "mandatory surcharge" of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay a monthly fee related to post-release supervision of $30 per month.

The judge may also order you to pay restitution to the victim. The purpose of restitution is to compensate the victim for expenses incurred as a result of the assault. For example, you may be required to pay for the victim's medical expenses. Generally, the maximum amount of restitution is $15,000, plus a 5% surcharge. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses.

If you do not pay a fine, fee or restitution, you may face another criminal charge that could land you in jail for up to a year. Furthermore the state has the authority to try to collect the funds from you by taking the money from your prison account or by garnishing your wages.

Long-Term Consequences

If you are convicted of assault on a police officer, after you have served your prison sentence, post-release supervision term, and paid your fine, fee and restitution, you will face additional, long-term consequences because you will have a permanent criminal record. Several aspects of your life will be more challenging such as getting a job. In fact, you will be barred from working in certain professions such as driving cab, being a security guard, teacher or a lawyer. In addition, you will not be able to own a gun, serve in the military, or serve on juries. You will be ineligible to receive certain government benefits such as welfare or federally funded housing. If you are not a citizen of the United States federal law may require that you be deported.

Being accused of assaulting a police officer is a particularly serious as the police and the prosecutor will aggressively seek to make sure that you are convicted. However, there are valid defenses to an assault on a police charge that could result in the charge being dropped or reduced. For this reason it is important that you are represented by someone with experience. 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 on a police officer as well as other assault crimes, menacing, reckless endangerment, and stalking. 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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