Nassau County Domestic Violence and Assault with a Gun

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

Assault is the crime of intentionally or recklessly causing physical injury to another person. When the person who committed the assault and the victim are in some sort of domestic relationship, then the assault is also an act of domestic violence. Examples of domestic relationships include those who are married, dating, have children together, or are roommates. There are many ways that an assault can be accomplished. For example, you could assault someone by punching, shooting, biting, stabbing, or hitting that person with a vehicle. However, assault with a gun is considered one of the most serious assault charges because the use of a gun increases the likelihood of serious injury or death to another person. Because assault with a gun usually leaves the victim with painful and permanent physical injuries, the consequences of an assault with a gun conviction are harsh. You could end up spending years in prison and paying significant fines, fees, and restitution. Thus, if you have been charged with domestic violence based on assaulting someone with a gun it is important that you immediately contact an experienced Nassau County Domestic Violence and 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

An assault with a gun charge can be any one of a number of different types of assault charges including assault in the first degree, assault in the second degree, and assault in the third degree. There are many types of weapons that are commonly called guns or firearms such as a pistol, revolver, rifle, shotgun, machine gun or an electronic stun gun. If during an act of domestic violence you use a gun and injury another person, you will face very serious charges that could land you in prison for years.

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. It is a Class B felony. For example, in the domestic violence case of People v. Rabideau, 918 N.Y.S.2d 247 (2011) defendant Brenda Rabideau was convicted of assault in the first degree based on shooting her husband with a rifle.

Assault in the second degree. Assault in the second degree with a gun is similar to assault in the first degree with a gun. 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.

Assault in the third degree. Assault in the third degree is the least serious assault with a gun crime. It is also referred to as criminally negligent assault. 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, at a minimum the victim must experience a "physical injury." As a physical injury is defined as an impairment of physical condition or substantial pain, any gunshot wound would likely qualify. Even a relatively minor gunshot wound would probably be enough for an assault in the third degree. Other assault crimes such as assault in the first or 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 more than a relatively minor "flesh wound." A flesh wound is a wound from a gunshot that breaks the skin but does not damage bones or vital organs. In order for the injury to be considered serious it must be so severe that there was a good possibility that the victim could have died or suffered 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 assault in the second degree charges.

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. A court is not likely to classify a small scar as enough disfiguration to make an injury serious.

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. This type of defense is commonly called a "self-defense." In a domestic violence situation, it is not unusual for one person to assault the other person in an attempt to protect him or herself or to protect another person such as a child, parent or sibling. However, typically a justification defense will not help you unless the other person 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 are incarcerated for an assault with a gun conviction depends on the specific charge of which you are convicted, your criminal record, and the specific facts of your case. 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. In addition, if you have a criminal record that includes at least 1 prior felony conviction within the past 10 years, you will receive a harsher sentence than if you had no prior convictions.

  • Prior convictions: Prior convictions include felony convictions within the last 10 years.
  • Non-Violent Predicate: A non-violent felony conviction within the last 10 years.
  • Violent Predicate: A violent felony conviction within the last 10 years.
  • Persistent Felony Offender: At least 2 prior felony convictions.

In addition to being sent to prison, being convicted of assault with a gun has hefty financial consequences in the form of fines, fees, and restitution.

  • 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 12-15 years in prison; maximum life

In addition to having to pay a fine you will be required to pay certain fees including a "mandatory surcharge" of $300 for a felony and $175 for a misdemeanor as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If your sentence includes probation or post-release supervision you will be required to pay a monthly supervision fee of $30.

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 $15,000 for a felony and $10,000 for a misdemeanor. 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 you facing yet another criminal charge that could mean a year in prison. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Probation and Post-Release Supervision

if you are convicted of domestic violence and assault with a gun part of your sentence will include probation or post-release supervision of between 1.5-5 years. There will be several rules that you must follow while you are on probation or post-release supervision such as:

  • You must not commit a crime
  • You must not associate with people who have felony criminal records
  • 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 Probation or Parole Officer
  • You must regularly report to your Probation or 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 probation or post-release supervision, you will have to appear before a judge at a revocation hearing. If after hearing evidence the judge concludes that you are in violation the judge could sent you to prison.

Orders of Protection

If you are charged with assaulting someone you are in a domestic relationship with, a judge may issue an Order of Protection against you. The Order of Protection may be issued by a criminal court judge or from family court. In either case, the Order of Protection will be very specific as to what you can and cannot do. For example, it may require you to stay away from the victim's home, school, or place of business. This means that 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. 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.

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, reckless endangerment, child endangerment, 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.

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, lawyer, or security guard. 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 domestic violence based on assault with a gun 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 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 and who also understands the intricacies of domestic violence cases. 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 domestic violence in the following locations:

CONTACT US FOR A FREE CONSULTATION
1-800-NY-NY-LAW (1-800-696-9529)