Nassau County Assault with a Gun

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

Many people think that assaulting someone involves hitting that person with a fist during a fight. However, there are many different ways that you can assault another person and there are many different objects that you can use to assault another person. Using a gun is a very dangerous means of assaulting someone. Whether you intend it or not, if you shoot someone with a gun there is a very good possibility that that person will suffer a serious injury or die. Because of this, if you use a gun to assault someone, you could face an assault charge that will send you away to prison for many years. Thus, if you have been charged with assaulting someone with a gun it is important that you immediately contact an experienced Nassau County 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 are 3 different assault changes that you may face if you shoot in the direction of another person or if you shoot and injure another person. These charges include assault in the first degree, assault in the second degree, and assault in the third degree. The statute also covers practically any type of weapons that is commonly called a gun including a pistol, revolver, rifle, shotgun, machine gun, an electronic stun gun or a firearm

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 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. As it is one of the most serious assault offenses, assault in the first degree is a Class B felony. The court will decide whether or not your actions amount to intent to seriously injure another person or show a depraved indifference based on the totality of circumstances surrounding the assault. For example, in People v. Forde, 080614 NYAPP2, 2014-05650 (August 6, 2014) defendant Andre Forde was convicted of assault in the first degree based on shooting a gun at an individual on a basketball court, hitting 3 other people. Although his intent was not to injure those 3 people, he still faced the assault in the first degree charge because the court concluded that shooting at a basketball court where several people where playing amounted to a minimum reckless conduct.

Assault in the second degree. An assault will be considered assault in the second degree and not assault in the first degree if the court deems that you intent was not to seriously injury another person but merely 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 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. 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. To sustain any assault with a gun charge the prosecutor must show that the victim suffered a "physical injury." Under the New York criminal code, a physical injury is defined as an impairment of physical condition or substantial pain. Unless the gunshot wound is merely a flesh wound any gunshot wound is likely to fit the requirements of the definition of a physical injury. However, to sustain a charge of assault in the first degree, the injury must be more that a physical injury, it must be a life-threatening injury. For example, in People v. Tran, 729 N.Y.S.2d 851 (2001), the defendant Ricky Tran was convicted of assault in the first degree based shooting the victim in the arm. The victim's wound was treated at the hospital and he was released. At trial the victim showed a slight scar left by the bullet. On appeal the court concluded that even though Tran did indeed shoot the victim that was not enough to sustain a charge of assault in the first degree. There must be some evidence of disfiguration, amputation or of a disabling injury to the victim.

Self-Defense. New York recognizes the defense of self-defense. The criminal code includes 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 defense to an assault charge that may result in the charges against you being dropped or reduce, or you may be acquitted. 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. For example, in People v. Fermin, 828 N.Y.S.2d 546 (2007), the defendant was convicted of assault in the first degree after having shot the victim. On appeal, however, the court set aside the conviction noting that because the victim approached the defendant with a gun the defendant may have been justified in shooting the victim based on self-defense.

Consequences of an Assault Conviction

Whether you go to jail or prison for an assault with a gun 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 gun, you will be sentenced to prison. The actual length of your prison sentence will depend on factors such as your prior criminal record. For purposes of sentencing, you will be considered to have prior convictions if you have been convicted of a felony within the prior 10 years. This does not just mean a conviction in New York State. If you were convicted of a crime in another jurisdiction and that crime is comparable to a felony in New York, the court will conclude that you have a prior felony conviction.

Furthermore, the type of felony of which you were convicted will also impact sentencing as a non-violent predicate offender will not receive as harsh of a sentence as someone who is a violent predicate offender. If you have been convicted of 2 or more felonies, then you will be considered a persistent felony offender. The judge has the option of sentencing persistent felony offenders who are convicted of yet another felony to life in prison.

  • 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
    • Non-violent predicate: Minimum 3 years in prison
    • Violent predicate: Minimum 5 years in prison
    • 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
    • Non-violent predicate: Minimum 8 years in prison
    • Violent predicate: Minimum 10 years in prison
    • Persistent felony offender: Minimum 20-15 years in prison; maximum life
Post-Release Supervision

Felony assault with a gun is a violent felony offense. Because of this post-release supervision will likely be part of your sentence. Following your prison you will be subject to community supervisions for 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). It is similar to other times of supervision such as probation and parole. There will be several rules that you must follow while you are on post-release supervision. While certain rules will apply to all on post-release supervision, there may be specific rules applied to your post-release supervision to help ensure a smooth, crime-free transition from prison back into the community. Such rules may include that:

  • You must not commit a crime
  • You must not associate with disreputable people
  • 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 Parole Officer
  • You must regularly report to your 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 post-release supervision, you will have to appear before a judge at a revocation hearing. After hearing evidence, 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.

Fines, Fees and Restitution

In addition to having to pay a fine of up to $1,000 for a misdemeanor assault with a gun conviction or up to $5,000 for a felony conviction, you will be required to pay certain fees including a "mandatory surcharge" of $175 for a misdemeanor and $300 for a felony, as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If your sentence includes post-release supervision you may also be required to pay supervision fees of $30 per month.

Another financial consequence of an assault with a gun conviction is that you may be ordered to pay restitution to the victim. Generally, the maximum amount of restitution is $10,000 for a misdemeanor and $15,000 for a felony, plus a 5% surcharge. However, the restitution may be considerably more as medical expenses for gunshot wounds can be significant and the court may require you to pay those expenses. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

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.

Orders of Protection

As part of the criminal process, the judge may grant a Temporary Order of Protection in favor of the victim. An Order of Protection is a court order requiring you to stay away from another person or requiring you to stop harassing or threatening another person. 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 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 Permanent Order of Protection, meaning that it may remain in place for a number of years.

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, burglary, robbery, 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 that could significantly extend your prison sentence and increase the fine that you are ordered to pay.

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, taxi driver, security guard or a lawyer. 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.

Being arrested for assault with a gun is serious. If you are convicted, there is a strong possibility that you will have to send time in prison way from your loved ones. You will also be hit with significant financial consequences and you will have a criminal record that will haunt you for years into the future. However, there may be defenses to a charge of assault with a gun 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 gun, it is important to immediately contact someone who 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 gun, 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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