New York Assault In The First Degree

Assault is a criminal offense that involves intentionally or recklessly harming another person. There are varying degrees of assault that relate directly to the severity of the injury to the victim and the means by which the assault is accomplished. Assault in the first degree is the most severe type of assault. In fact, it is one of the most serious crimes than you can commit. If convicted not only will you be sentenced to at least 5 years and up to 25 years in prison, but you will face additional consequences after you are released from prison such as being subject to post-release supervision restrictions and having a criminal record. However, there are defenses to an assault in the first degree charge. Thus, if you are in need of a criminal lawyer because you have been charged with assault in the first degree it is important that you speak with an experienced New York assault lawyer who will listen to the facts of your case 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, gun crimes and sex crimes. Find out what we can do for you by contacting us to schedule a free, no obligation consultation regarding your case.

Definition of assault in the first 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 first degree is the most serious of the three offenses. It is a class B felony and carries a possible prison sentence of up to 25 years.

There are 4 factors that will cause an assault to rise to the level of a first degree assault.

  1. 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: means 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. A vehicle is one example of a dangerous instrument. N.Y. Pen. Law § 10.00(13). Serious physical injury means an injury that is so severe that the 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. Johnson, 967 N.Y.S.2d 217 (2013) defendant Andrea Johnson was convicted of assault in the first degree based on assaulting the victim in such a manner that seriously injured the victim's face. The defendant argued that the victim did not see a knife or blade. However, the court concluded that the victim's testimony that she felt a knife or a blade on her face, coupled with the injuries sustained by the victim was enough to support a first degree assault conviction.

  2. You 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. In People v. Dietz, 947 N.Y.S.2d 891 (2013), defendant Kordian Dietz was convicted of assault in the first degree based on hitting the victim in the face with a bottle. The court concluded that in doing so Dietz intended to seriously and permanently disfigure the victim.

  3. You 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. In People v. Miller, 966 N.Y.S.2d 88 (2013), defendant Oscar Miller was convicted for assault in the first degree after driving his car at high speeds and recklessly in an attempt to evade the police. Miller ended up hitting and seriously injuring a bystander. The jury concluded that Miller's actions showed a depraved indifferent for human life.

  4. You assault another person while you are committing a felony, attempting to commit a felony, or fleeing after you have committed or attempt to commit a felony, as a result cause serious physical injury to another person.

Defenses to an assault charge

Injury. In order to charge you with assault in the first degree the prosecutor must be able to show that the victim's injury was so severe that the there was a good chance that the victim might die or suffer a protracted physical impairment. N.Y. Pen. Law § 10.00(10). If you can show that the victim's injuries were in fact not serious, then you may have a valid defense to assault in the first degree charges. You may still face a less severe assault charge such as assault in the third degree. However, if convicted the penalty would not be as harsh.

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. If you injure someone who attacked you or who you have a reasonable fear was about to physically harm you, you may have a valid defense to an assault charge. 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 and the defendant may have been justified in shooting the victim based on self-defense.

Consequences of an assault conviction

If you are convicted of assault in the first degree your sentence will include incarceration, a fine and probation. In addition, an Order of Protection may be issued against you. It is important to understand that if you are charged with assault in the first degree, depending on the facts of your case, you may face additional criminal charges. If you are convicted of multiple offenses, your sentence will be negatively impacted.

Prison

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.

  • 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.

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. For example, in People v. Miller, 062014 NYAPP4, 2014-04641 (June 20, 2014), defendant Damien Miller was convicted of assault in the first degree. Because he was also convicted of burglary in the second degree Miller was sentenced as a predicate violent offender for the first degree assault conviction. He was sentenced to 15 years in prison.

If you are a persistent felony offender, then the minimum sentence you will receive is 20-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08. For example, in People v. White , 961 N.Y.S.2d 603 (2013), defendant Thomas White was accused of abducting a victim and causing the victim serious physical injury. White pleaded guilty to assault in the first degree. Thomas was sentenced as a second felony offender, receiving a sentence of 22 years in prison.

Because assault in the first degree is a violent felony offense, you will be required to serve 6/7 of your sentence before you will be eligible for release.

Post-release supervision

If convicted of assault in the first degree part of your sentence will include a term of post-release supervision of 2.5-5 years. N.Y. Pen. Law § 70.45(f). For example, in People v. Medina, 951 N.Y.S.2d 88 (2012) defendant Raymond Medina was convicted of assault in the first degree. He was sentenced to 7 years in prison and 5 years post-release supervision.

There will be several rules that you must follow while you are on post-release supervision. The rules associated with your post-release supervision vary from person to person, but may include that:

  • You must not commit a crime
  • You cannot leave the State of New York without permission
  • You must consent to warrantless searches
  • You must not associate with people who have criminal records
  • You must now own, possess or purchase a gun
  • You must not possess a controlled substance or drug paraphernalia
  • You must refrain from consuming alcohol
  • You must stick to a curfew
  • You must have job
  • You must submit to home visits by your Parole Officer
  • You must submit to drug testing
  • You must regularly report to your Parole Officer

If you violate any of the terms of your post-release supervision, you will receive a revocation hearing. Based on the evidence presented, the outcome of such a hearing may be that your post-release supervision statutes is undisturbed, you will be required to go back to jail for a period and then back on post-release supervision status, or you may be required to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Fines, fees and restitution

Your sentence may also include the payment of a fine of up to $5,000. If you are convicted of a crime in New York, you will be required to pay certain fees. For a felony conviction you will have to pay a mandatory surcharge of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay post-release supervision fees.

As part of your sentence you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. 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.

Orders of protection As part of the criminal process the prosecutor may request and the judge may grant an order of protection in favor of the victim. An order of protection is designed to keep the victim safe by limiting your actions. For example, an order of protection may state that you are not permitted to go near the victim, the victim's children and the victim's place of employment. If you live with the victim, you may be ordered to move. If you violate an order of protection you could face additional criminal charges. 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 sentenced to just the minimum prison sentence of 5 years, there will be consequences of being convicted of assault in the first degree that will last for years after your prison sentence. You will have a criminal record that will negatively impact many aspects of your life such as getting a job. You will be completely excluded from practicing in certain profession such as law or teaching. You will not be able to own a gun, serve in the military, or serve on juries. You will not be able to receive certain government benefits such as welfare or federally funded housing.

Contact the Law Offices of Stephen Bilkis & Associates

The consequences of being convicted of assault in the first degree are harsh. Not only might you be sentenced to years in prison, you may also be required to pay stiff fines, fees and restitution. Furthermore, having a violent felony criminal record will limit your ability to find employment and make you ineligible to receive certain government benefits. However, there may be defenses to a charge of assault in the first degree that may result in the charges being dropped, in you being acquitted, or the charges being reduced. 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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