Nassau County Assault with a Deadly Weapon

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

Assault is one of the most common criminal offenses in New York and in other jurisdictions across the country. While there are many different ways that you can assault someone, one of the most damaging ways it to use a deadly weapon such as a gun or a knife. Because the use of a deadly weapon raises the likelihood that the victim would suffer a serious injury or death, if you assault someone using a deadly weapon you could end up in prison for several years and be ordered to pay thousands of dollars in fines, fees and restitution. Thus, if you have been charged with assaulting someone using a deadly weapon it is important that you immediately contact an experienced Nassau Country Assault with a Deadly Weapon Lawyer who will review the facts of your case and aggressively defend you until your case is resolved.

Assault with a deadly weapon charges

Under the New York criminal code a deadly weapon is generally defined as a weapon such as a knife or a gun that is readily able to cause death or a serious physical injury. N.Y. Pen. Law § 10.00(12). It lists a number of specific weapons that the legislature has already determined to be deadly weapons including: a loaded weapon that can be shot, a knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles. There are 3 assault offenses that involve the use of a deadly weapon. One is a misdemeanor while the other 2 are felonies.

Assault in the first degree. You will face a change of assault in the first degree if you use a deadly weapon to seriously injure another person and that was your intent. N.Y. Pen. Law § 120.10(1). 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. Johnson, 967 N.Y.S.2d 217 (2013) the defendant Andrea Johnson used what was described as a knife or a blade as a deadly weapon. As a result of the assault the victim suffered a serious injury to her face. Johnson was convicted of assault in the first degree based on using a deadly weapon.

Assault in the second degree. Assault in the second degree with a deadly weapon is similar to assault in the first degree with a deadly weapon. 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. Assault in the second degree is a Class D felony. In People v. Forde, 990 N.Y.S.2d 637 (2014) the defendant, Andre Forde, while attempting to shoot a specific person, ended up shooting and seriously injuring 3 other people. As a result he was convicted of assault in the second degree.

Assault in the third degree. Assault in the third degree is the least serious assault with a deadly weapon crime. It is a Class A misdemeanor. You will face this crime if with criminal negligence you cause physical injury to another using a deadly weapon. N.Y. Pen. Law § 120.00

Defenses to an Assault Charge

Extent of Injury. To sustain any assault charge, at a minimum the victim must experience 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. Other assault crimes such as assault in the 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 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). For example, in People v. Thompson, 988 N.Y.S.2d 889 (2014), the court was satisfied that the defendant caused the victim a serious physical injury. The victim experienced internal bleeding, requiring him to receive treatment in an intensive care unit. 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. 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. However, even if you initiate an altercation, if you retreat and the victim continues to be aggressive, you may still be able to use the justification defense. This is what happened in the case of People v. Powell, 956 N.Y.S.2d 294 (2012). On appeal from an assault in the second degree conviction based on using a deadly weapon to assault another person, the court concluded that even though the defendant was the aggressor, he had retreated. When the assault occurred the defendant was trying to get away from the victim and several others who were threatening him.

Consequences of an Assault Conviction

The sentence that you face for an assault with a deadly weapon depends on the exact charge of which you are convicted. A conviction for misdemeanor assault in the third degree will result in a lighter sentence than a conviction for felony assault in the first degree. If you are sentenced to prison the length of your prison sentence will depend on factors such as your prior criminal record as well as mitigating or aggravating aspects of your crime. Your criminal history will place you in one of the following categories:

  • No prior convictions: You have no prior 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.

In addition, there will be financial consequences in the form of fines, fees, and restitution.

  • Class A misdemeanor. The maximum possible sentence is 1 year in the county jail.
  • Class D felony. The maximum possible sentence is 7 years in prison.
    • 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.
    • 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
Probation and Post-Release Supervision

If you are convicted of an assault with an deadly weapon charge part of your sentence may include probation or post-release supervision. Probation is a term of community supervision imposed by the court in lieu of a prison sentence. A judge could sentence you to just probation, or a combination of probation and incarceration. For a Class A misdemeanor the term of probation would be 3 years, while for a felon the term of probation would be 5 years. For a felony assault with a weapon charge, a sentence of just probation is not an option.

Post-release supervision is a period of community supervision imposed by the court to be completed after release from a jail or prison sentence. If you are convicted of a crime that is categorized as a violent felony such as assault in the first degree and assault in the second degree, your sentence will include prison followed by post-release supervision. For a Class D felony the term of post-release supervision will be 1.5-3 years and 2.5-5 years for a Class B felony. N.Y. Pen. Law § 70.45(2)(e).

The rules that you must follow while you are completing your probation or post-release supervision may vary slightly from person to person, but may include that:

  • You must not commit a crime
  • You must not associate with other people who you know have criminal records
  • You must not patronize unlawful or disreputable places
  • You must not possess a controlled substance or drug paraphernalia
  • You must submit to drug testing
  • 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 now own, possess or purchase a gun
  • You must refrain from consuming alcohol
  • You must stick to 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 could be sentence to jail.

Fines, Fees and Restitution

There are financial consequences to a criminal conviction in the form of fines, fees and restitution. The judge may order you 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 also 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. If your sentence includes supervision, you will have to pay a monthly supervision 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, plus a 5% surcharge.

Failure to pay and ordered fine, fee or restitution, may result in you facing additional criminal charges.

Orders of Protection

As part of the criminal process the prosecutor may request that the judge issue a Temporary Order of Protection in favor of the victim. The Order of Protection is designed to protect the victim from any further threats or injuries from you. The Order will be very specific about what you cannot do. For example, it may state that you must not go to the victim's residence, school or place of work. This could mean that if you live with the victim you will be required to move. The Order of Protection may also require that you refrain from threatening or harassing the victim. If you violate an Order of Protection you will face criminal contempt charges.

Long-Term Consequences

Even if you are convicted of a misdemeanor assault with a deadly weapon 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.

Being arrested for assault with a deadly weapon is serious. If you are convicted, in addition to being sent to prison, many other aspects of your life may change forever. However, there may be defenses to a charge of assault in the second degree 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 deadly weapon, 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 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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