New York Assault In The Second Degree

Assault is the criminal charge you will face if you intentionally or recklessly cause physical injury to someone else. It is typically the charge applied when one person "beats up" another person. There are different degrees of assault that relate directly to the severity of the injury suffered by the victim and whether or not a weapon was used to commit the assault. While assault in the second degree is not the most serious assault charge, if you are convicted you will go to prison. Furthermore, in addition to having to spend time in prison you will also have to 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 second degree charge. Thus, if you are in need of a criminal lawyer because you have been charged you have been charged with assault in the second degree it is important that you immediately contact an experienced New York assault lawyer who will listen to the facts of your case and explain to you your legal options. 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 second 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 second degree is the most serious of the three offenses. It is a class D felony and carries a possible prison sentence of up to 7 years.

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

  1. You assault 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 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. Taylor, 986 N.Y.S.2d 711 (2014) defendant Daniel Taylor was convicted of assault in the second degree based on using a pocket knife to cause a 16" cut the abdomen of the victim. In People v. McElroy , 981 N.Y.S.2d 298 (2014), defendant Andrew McElroy was charged with assault in the second degree after punching his victim. The victim fell backwards, hitting his head on the sidewalk. As a result the victim suffered severe head and brain injuries, ending up on life support.
  2. 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. For example, in People v. Warren, 949 N.Y.S.2d 496 (2012), defendant Andrew Warren was convicted of assault in the second degree based throwing the victim down a staircase onto a concrete landing, causing injury. While a concrete landing is not commonly referred to as a dangerous instrument, when used in the manner that the defendant used it, it became a dangerous instrument.
  3. You assault an official in order to prevent that person from performing his or her duties. Such officials include: a peace officer, a police officer, a prosecutor, a registered nurse, licensed practical nurse, a sanitation worker, a firefighter, a paramedic, emergency room personnel, a city marshal, a traffic enforcement officer, or social services employee.
  4. You assault an official while that person was performing his or her duties. Such officials include: train operator, ticket inspector, conductor, signalperson, bus operator or other transit authority employee, a city marshal, a traffic enforcement officer, prosecutor, or sanitation worker.
  5. You recklessly cause serious physical injury to another person with a deadly weapon or a dangerous instrument.
  6. You intentionally cause another person to become unconsciousness or physically impaired by administering a drug to that person without his or her consent. In People v. Elmy, 984 N.Y.S.2d 672 (2014) defendant Robert Elmy was convicted of assault in the second degree. Elmy beat his wife and forced her to consume a large amount of alcohol. As a result she suffered a brain injury and multiple bruises and required emergency surgery.
  7. In the course of committing a felony you injure another person.
  8. If you are at least 18 years old, you intend to injure a child who is under 11 years old or recklessly injure such a child.
Defenses to an assault charge

Type of injury. An assault in the second degree charge can be based on you seriously injuring the victim. 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). 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. However, even if the evidence may not support an assault in the second degree charge, the prosecutor may still decide to prosecute you for the less severe assault charge of assault in the third degree. If convicted of assault in the third degree the penalty would not be as harsh.

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 means that if the reason that you injured the other person is because you were protecting yourself from him or her, 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.

Sentencing

If you are convicted of assault in the second degree your sentence will include prison, payment of fines and fees, and post-release supervision. In addition, an Order of Protection may be issued against you.

Prison

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. Your sentence will be determinate, meaning that it will be a set period of years and not a range of years. The actual length of your prison sentence will depend on factors such as your prior criminal record, which will be labeled as follows:

  • 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 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 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. Because assault in the second degree is a violent felony offense, you will be required to serve 6/7 of your sentence before you will be eligible for release. Upon release you will be required to serve a term of post-release supervision.

Post-release supervision

If convicted of assault in the second degree part of your sentence will also include a term of post-release supervision of 1.5-3 years. N.Y. Pen. Law § 70.45(e). There will be several rules that you must follow while you are on post-release supervision. Such rules vary from person to person based on what the Department of Corrections determines is needed to 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 other people who you know have criminal records
  • You must not patronize disreputable places
  • You must not possess a controlled substance or drug paraphernalia
  • 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 submit to drug testing
  • You must stick to a curfew
  • You must have job

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

Being convicted of assault also can have substantial financial consequences as you will likely be required to pay a fine, fees and restitution. For an assault in the second degree conviction in addition to being sentenced to at least 2 years in prison you may also be required to pay a fine of up to $5,000. Furthermore, you will be required to pay certain fees including a fee that is called 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 probation or parole supervision fees of $30 per month.

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 $15,000. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

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. However, if you cannot pay the judge may adjust the payment terms, lower the amount you must pay, or revoke the part of the sentencing requiring you to pay.

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. In simple terms, an order of protection is a court order requiring you to stay away from 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, you may be ordered 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. For example, in People v. Navas, 977 N.Y.S.2d 669 (2013) defendant Manuel Navas, who was already facing criminal charges based on an incident of domestic violence against his wife, was arrested and charged with criminal contempt in the second degree based on violation of an order of protection issued against him on behalf of his wife.

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 2 years, there will be consequences of being convicted of assault in the second degree that will last for years after you are released from prison, complete your post-release supervision and pay fees, fines and restitution. You will have a criminal record that will may several aspects of your life more challenging such as getting a job. In fact, 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. You will also not be able to receive certain government benefits such as welfare or federally funded housing.

Contact the Law Offices of Stephen Bilkis & Associates

Being arrested for assault is serious. If you are convicted many 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. Thus, if you have been arrested for assault in the second degree or any assault charge it is important to immediately contact someone who understands the New York criminal system. 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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