New York Assault at a Bar

Bars, restaurants, and nightclubs are common locations for fights. Usually the fights are between patrons. Sometimes the fights are between employees such as bouncers and security guards, and patrons. Oftentimes such fights are fueled by alcohol or drugs. If you are involved in a bar fight you could face serious criminal assault charges. While there are several different types of criminal assault charges the most common assault charge stemming from a bar fight is assault in the third degree. It will be the charge you will face if you assault another person and cause that person injury, but the injury is relatively minor. For example, if you punch another person causing a slight bruise on that person's face because the injury is not serious the charge you are likely to face is assault in the third degree. It is a misdemeanor. This means that the longest jail sentence that you could receive if convicted is 1 year in jail. However, while assault in the third degree is a common assault at a bar charge, if you assault someone and that person sustains serious injuries or if you use a deadly weapon or dangerous instrument during the assault, the assault charge you will face will be more serious than assault in the third degree. Thus, if you have been charged with assault after being involved in a fight at a bar, restaurant or nightclub, it is important that you speak with an experienced New York assault lawyer who will explain to you your legal options and who will aggressively defend you against the charges. The attorneys at the Law Offices of Stephen Bilkis & Associates have decades of experience representing clients who have been charged with assault and other serious crimes such as domestic violence and sex crimes. Find out what we can do for you by contacting us to schedule a free, no obligation consultation regarding your case.

Types of assault at a bar offenses

Assault in the third degree. New York Penal Law includes 3 degrees of the crime of assault including assault in the first degree, second degree and third degree. Assault in the third degree is the least serious of the three offenses. You will face a change of assault in the third degree if:

  • You intentionally physically injure another person
  • You injure a third party when you intended to injure another person
  • You recklessly injure another person
  • You negligently injure another person using a deadly weapon or dangerous instrument.

It is a class A misdemeanor and carries a possible prison sentence of up to 1 year in jail. N.Y. Pen. Law § 120.00

Assault in the third degree is a common charge for when one person initiates a fight with another person at a bar or night club, or one person "beats up" another person. In order to face this charge, the victim must suffer an injury that causes impairment or substantial pain. However, it is not necessary for the injury to be serious or life-threatening. In People v. Enos, 398 N.Y.S.2d 760 (1977), defendant Robert Enos was convicted of assault in the third degree after kicking the victim in the head while at a bar, causing the victim to lose consciousness.

Assault in the second degree. There are several factors that may cause an assault at a bar to rise from a third degree assault, to a second degree assault.

  • For a third degree assault charge you must have assaulted another person and caused physical injury. With second degree assault you must have assaulted another person with the intent to cause serious injury to that person and you do in fact cause serious physical injury to that person or to a third person. N.Y. Pen. Law § 120.05(1). Serious physical injury means an injury that is so severe that there is a good chance that the victim might die or suffer a protracted physical impairment. N.Y. Pen. Law § 10.00(10). In the case of People v. Burns, 281 A.D.2d 704 (2001) defendant Shonnell Jones was convicted of assault in the second degree based on using a razor blade to sever the temporal artery of the victim during a fight outside a nightclub.
  • You assault another person using a deadly weapon or dangerous instrument, intending to injure another person and in fact injuring that person or a third party. While a deadly weapon or dangerous instrument is often a knife, gun, or vehicle, it can be any object or thing that can be used in a manner such that it is capable of causing serious physical injury. In People v. Tehonica, 847 N.Y.S.2d 257 (2007), during a bar fight the defendant struck the victim with a pool cue.
  • You recklessly cause serious physical injury to another person with a deadly weapon or a dangerous instrument.

Assault in the first degree. Assault in the first degree is the most serious type of assault charge. You will face this charge if you:

  • Assault another person with a deadly weapon or dangerous instrument, causing serious physical injury to that person or to a third person. N.Y. Pen. Law § 120.10. New York's criminal statute gives several examples of what is considered a dangerous weapon: 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. For example, in the case of People v. Sharpe, 896 N.Y.S.2d 189 (2010) a bar stool was used as a dangerous instrument. Defendant Brian Sharpe was convicted of assault in the first degree based on bar fight in which he beat the victim with a bar stool.
  • Assault another person intending to seriously or permanently disfigure that person, and you do in fact seriously or permanently disfigure that person or a third party.
  • Assault another person such that you demonstrate a depraved indifference to human life, or you engage in conduct that is so reckless that you create a grave risk of death to another person and in fact cause serious injury to another person.
Defenses to an assault charge

Physical injury. In order to sustain a charge of assault in the third degree, the victim must have sustained a physical injury. While it is not necessary for the injury to be severe, there must be some evidence of an injury other than the victim complaining that he or she was hurt.

Self-defense. Under New York law you are permitted to use reasonable force to protect yourself or another person from imminent physical danger. N.Y. Pen. Law § 35.15. However, the court will not permit you to raise this defense if based on the facts of the case you could not have reasonably believed that you were in imminent physical danger.

Mistaken identity. When an assault occurs in a bar, night club, restaurant or party, the atmosphere makes mistaken identity a strong possibility. Such places tend to be crowded, chaotic, dark and loud. In addition, patrons and guests are often intoxicated by alcohol or controlled substances. Fights between 2 people can quickly escalate to melees in which many people are involved. In such cases it is not uncommon for a victim to identify the wrong person as the assailant. In People v. Diaz, 982 N.Y.S.2d 445 (2014), the defendant Hubert Diaz was convicted of attempted assault in the first degree based on hitting the victim in the head with a machete. The victim latter picked out Diaz from a photo lineup. On appeal the court overturned the conviction noting that there were questions as to the victim's identification of the defendant since the night club was crowded and dimly light. Furthermore, the victim had lapses in memory.

Consequences of an assault at a bar conviction

The sentence for an assault at a bar conviction depends on two primary factors: the seriousness of the assault offense and your criminal record. Because assault in the third degree is a class A misdemeanor if convicted the maximum sentence is up to a year in jail. In fact, it is possible that the judge may instead sentence you to probation. On the other hand, for convictions on assault in the first degree or assault in the second degree charges, you will be sentenced to prison. In addition, there will be financial consequences. You will be ordered to pay fees, a fine, and restitution.

Prison

Assault in the third degree. While those convicted of misdemeanors often do not receive jail time, if you have a prior criminal history jail is likely to be part of your sentence.

Assault in the second degree. 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. The actual length of your prison sentence will depend on factors such as your prior criminal record. Even if you have no prior convictions, then 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 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. Upon release you will be required to serve a term of post-release supervision.

Assault in the first degree. Assault in the first degree is a class B felony. The maximum possible sentence is 25 years in prison. N.Y. Pen. Law § 70.02. Because assault in the first degree is classified as a violent felony, the judge is required to impose a minimum sentence of 5 years. Your sentence will be determinate, meaning that it will be a set period of years, and will not involve a range. The length of your prison sentence will depend on factors such as your prior criminal record. You will be classified based on your prior criminal record. Even if you have no prior convictions then the minimum sentence you will receive is 5 years in prison. 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 8 years for an assault in the first degree conviction, while if you are a violent predicate offender, you will be sentenced to at least 10 years in prison.

Probation

If you are convicted of assault in the third degree because it is a misdemeanor the judge may opt to sentence you to no jail time but just probation. The mandatory probation term for misdemeanors is 3 years. 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 people who you know have criminal records
  • You must not patronize unlawful or 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 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 perform community service
  • You must notify your Probation Officer of a new address
  • 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 before the judge who originally sentenced you to probation. The judge will listen to evidence and determine if you did indeed violate the terms of your probation. If the violation is minor such as failing to report to your probation officer of report a new address, then the judge may choose not to violate you. On the other hand if the violation is significant such as you committing another crime, the judge could revoke your probation and resentence you to jail.

Fines, fees and restitution

Your sentence may also include the payment of a fine of up to $1,000. If you are convicted of a crime in New York, you will be required to pay certain fees. You will have to pay a mandatory surcharge of $25-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay a probation supervision fee of $30 per week.

As part of your sentence you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. For example, in People v. Tehonica the defendant was ordered to pay $10,889.40 in restitution. 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 be charged with a misdemeanor and sent to prison for up to a year, your wages may be garnished or the state of New York may obtain a judgment against you. The court may reduce the amount of the fees, fines and restitution you are required to pay, or change the payment terms based on your financial condition.

Long-term consequences

If you are convicted of any assault offense, even a misdemeanor, you will end up with a criminal record which will negatively impact several aspects of your life. With a simple background check a potential employer or a college admissions officer will quickly learn that you were convicted of assault. As a result, you may lose many opportunities.

Contact the Law Offices of Stephen Bilkis & Associates

The consequences of an assault in a bar conviction are serious. You may end up spending a year in jail away from your family and friends. Once you return you will have to face life with having a criminal record. In addition, you will have to pay fines, fees, and restitution that may amount to thousands of dollars. However, there are defenses to an assault charge that may result in the charge to be dropped, reduced or you being acquitted. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with misdemeanors and felonies such as assault in the first degree, assault in the second degree, 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 larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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