Nassau County Assault with a Dangerous Instrument

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

Under New York Penal Law assault is a criminal offense that involves intentionally or recklessly causing physical injury to another person. You can assault someone during a fist fight, using a deadly weapon such as a gun, or using a dangerous instrument. A dangerous instrument is any object that is not typically used as a weapon, but when used in certain circumstance terms in to a weapon that causes physical injury to another person. For example a boot, a cement sidewalk, and a bottle can all be dangerous instruments. Furthermore, it is well established that a can car be used as a dangerous instrument. If you assault someone with a dangerous instrument that victim can be left with painful, life-threatening injuries. Because of this the consequences of an assault with a dangerous instrument conviction are harsh. You could end up spending years in prison and paying significant fines, fees, and restitution. If you have been charged with assaulting someone using a dangerous instrument it is important that you take action and immediately contact an experienced Nassau County Assault with a Dangerous Instrument Lawyer who will review the facts of your case and aggressively defend you until your case is resolved.

Assault with a dangerous instrument charges

Depending on the details of the attack, if you assault another person with a dangerous instrument charge you could face a charge of assault in the first degree, assault in the second degree, or assault in the third degree. New York criminal law defines a dangerous instrument as any instrument, article or substance 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). Aside from a vehicle the statute does not give other specific examples of what would be considered a dangerous instrument. However, New York courts have found many different objects to be dangerous instruments based on how they were used and the amount of physical injury caused by the object.

Assault in the first degree. You will face a change of assault in the first degree if with intent to cause serious physical injury you seriously injure another person with a dangerous weapon. N.Y. Pen. Law § 120.10. As it is one of the most serious assault offenses, assault in the first degree is a Class B felony. For example, in People v. Sharpe, 896 N.Y.S.2d 189 (2010) the defendant faced assault in the first degree charges after using a bar stool to repeatedly strike the victim.

Assault in the second degree. Assault in the second degree with a dangerous instrument is similar to assault in the first degree with a dangerous instrument. 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. For example, in People v. Tehonica, 847 N.Y.S.2d 257 (2007) the defendant was convicted of assault in the second degree based on using a pool cue as a dangerous instrument.

Assault in the third degree. Assault in the third degree is the least serious assault with a dangerous instrument crime. It is a Class A misdemeanor. You will face this crime if with criminal negligence you cause physical injury to another using a dangerous instrument. N.Y. Pen. Law § 120.00. Criminal negligence is defined as engaging in conduct that grossly deviates from the standard of care that a reasonable person would use in that situation. N.Y. Pen. Law § 15.05(4)

Defenses to an Assault Charge

Extent of Injury. In order to support an assault in the third degree or assault in the second degree charge based on the use of a dangerous weapon, the prosecutor must show that the victim suffered a "physical injury." Physical injury is defined as an impairment of physical condition or substantial pain. This means that the injury to the victim must be more than minor. If the victim experiences some discomfort and brief bruising that does not leave a scar or require hospital treatment, the prosecutor will have a difficult time proving the crime of assault.

On the other hand assault in the first degree requires that the victim sustain a serious physical injury. This means that the prosecutor's evidence must clearly show that the victim suffered injuries that were so severe that the there was a good possibility that the victim might die or suffer 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 an assault in the first degree charge.

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. Thus, if the reason that you injured the other person is because you were protecting yourself from that person, then you may have a valid defense to an assault charge. However, to use the justification defense, the other person had to have 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

Whether you go to jail or prison for an assault with a dangerous instrument conviction depends on the specific charge of which you are convicted. 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 dangerous instrument, you are likely to be sentenced to prison. The actual length of your prison sentence will depend on the type of offender you are classified as based on your criminal record. If you have no felony convictions within the prior 10 years, then you will classified as an offender with no priors. If you have a non-violent felony conviction within the prior 10 years, you will be classified as a non-violent predicate offender. If you have a violent felony conviction within the prior 10 years you will be classified as a violent predicate felony offender. If you have been convicted of at least 2 prior felonies, you will be classified as a persistent felony offender.

  • Class A misdemeanor. The maximum possible sentence is 1 year in jail and a fine of up to $1,000.
  • Class D felony. The maximum possible sentence is 7 years in prison and a fine of up to $5,000.
    • No prior convictions: Minimum 2 years in prison; maximum 7 years
    • Non-violent predicate: Minimum 3 years in prison; maximum 7 years
    • Violent predicate: Minimum 5 years in prison; maximum 7 years
    • Persistent felony offender: Minimum 12-15 years in prison; maximum life
  • Class B felony. The maximum possible sentence is 25 years in prison and a fine of up to $5,000.
    • No prior convictions: Minimum 5 years in prison; maximum 25 years
    • Non-violent predicate: Minimum 8 years in prison; maximum 25 years
    • Violent predicate: Minimum 10 years in prison; maximum 25 years
    • Persistent felony offender: Minimum 20-15 years in prison; maximum life
Post-Release Supervision

If convicted of a felony assault with a dangerous weapon offense, part of your sentence will include a term of post-release supervision of 1.5-3 years for a Class D felony and 2.5-5 years for a Class B felony. N.Y. Pen. Law § 70.45(2)(e). There will be several rules that you must follow while you are on post-release supervision. 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.

Probation

If you are convicted of assault in the third degree because it is a misdemeanor you may be sentenced to 3 years of probation and no jail time. The judge is likely to give you a sentence of just probation if you have no prior convictions. There will be several rules that you must follow while you are on probation. N.Y. Pen. Law § 65.10. The rules associated with probation vary from person to person, but may include that:

  • You must not commit a crime
  • You must not leave the State of New York without permission
  • You must consent to warrantless searches
  • You must not associate with disreputable people
  • You must not patronize disreputable places
  • You must not possess a firearm
  • You must not possess a controlled substance or drug paraphernalia
  • You must refrain from consuming alcohol
  • You must undergo any ordered medical or psychiatric treatment
  • You must complete an alcohol or substance abuse program
  • You must stick to a curfew
  • You must have job or attend school
  • You must submit to electronic monitoring
  • You must regularly report to your Probation Officer

If you violate any of the terms of your probation your Probation Officer may file a Violation of Probation with the court. You will then be required to appear in court for a hearing during which the judge will listen to evidence and determine if you did indeed violate the terms of your probation. If you did violate the terms of your probation, the judge may allow you to continue on probation with additional restrictions or revoke your probation and resentence you to jail.

Fines, Fees and Restitution

In addition to having to pay a fine of up to $1,000 for a misdemeanor assault with a deadly weapon conviction or up to $5,000 for a felony conviction, you will be required to pay certain fees including a "mandatory surcharge" of $175-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. Furthermore, if part of your sentence is probation or post-release supervision, you will have to pay a monthly fee of $30.

Another financial consequence of an assault in the second degree conviction is that you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $10,000 for a misdemeanor and $15,000 for a felony. However, the court may increase the amount to more than that if the circumstances allow it. For example, if the victim suffered medical expenses that exceed the $10,000 or $15,000 limit, the law allows the judge to order you to pay restitution above the general statutory limit to cover the amount of the victim's medical expenses.

However, if you let the court know that you do not have the means to pay, the judge may adjust the payment terms, lower the amount you are required to pay, or revoke the part of your sentence that requires you to pay.

Orders of Protection

As part of the criminal process, prosecutors routinely request orders of protection against those accused of assault as a precaution to protect the victim. The Order of Protection will require you to stay away from the victim as well as require you to stop harassing or threatening the victim. Such orders are usually very specific about what you cannot do and what you must do. For example, an Order of Protection may state that you are not permitted to go near the victim, the victim's children or the victim's place of employment. If you live with the victim, the order may require you to move. If you have children with the victim, you may be ordered to stay away from your child and 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 dangerous instrument charge against you, the Temporary Order of Protection may become a Permanent 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.

Long-Term Consequences

Even if you are convicted of a misdemeanor assault with a dangerous instrument 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 or a lawyer. In addition, you will not be able to own a gun, 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. You may lose custody of your children. If you are not a citizen you could be deported.

Assault with a dangerous instrument is a particularly serious assault crime because of the violence involved. A conviction of the most serious assault with a dangerous instrument charge could result in you to prison for many years. However, there may be defenses to a charge of assault with a dangerous instrument that only an experienced practitioner will understand and be able to apply to your case. Thus, if you have been arrested for assault with a dangerous instrument, it is important to immediately contact someone understands the New York criminal system. 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 dangerous instrument, assault with a deadly weapon, as well as other assault crimes, 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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