New York Assault on a Firefighter

Assault involves being violent toward another person intentionally or recklessly that causes that person physical injury. Assault can be accomplished in many different ways such as with fists, a gun, a knife, or with a vehicle. Depending on your intent, how the assault was accomplished, and the extent of the victim's injury, the crime of assault can range from a misdemeanor to a serious felony. If the victim falls into a protected class then the assault will always be classified as a felony. Firefighters are part of such protected class. When firefighters do their jobs they save lives. If they are in any way hindered from performing their duties someone could die. For this reason if you are convicted of assaulting a firefighter you will go to prison for a minimum of 2 years and up to life. Probation will not be an option. However, in their zeal to punish anyone who is accused of hurting a firefighter prosecutors do not always get it right and on occasion misinterpret the evidence. Thus, if you are in need of a criminal lawyer because you have been charged with assault on a firefighter it is important that you immediately contact an experienced New York assault lawyer who will review the facts of your case and aggressively fight the charges against you until your case is resolved. 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.

Elements of assault on a firefighter

There are 2 different felony assault offenses related to injuring a firefighter: assault in the second degree and assault on a peace officer, police officer, fireman or emergency medical services professional.

  1. Assault in the second degree. You will face this charge if you assault a firefighter in order to prevent the firefighter from performing his or her duties and cause physical injury. N.Y. Pen. Law § 120.05. It is a class D felony. Physical injury means an injury that causes a physical impairment or substantial physical pain. N.Y. Pen. Law § 10.00(9). Assault in the second degree does not only apply to assault on firefighters but assault on other emergency service officials such as paramedics and emergency medical technicians.
  2. Assault on a peace officer, police officer, fireman or emergency medical services professional . You will have committed this crime if with intent to prevent a firefighter from performing his or her lawful duty, you cause that firefighter serious physical injury. N.Y. Pen. Law § 120.08. It is as class C felony. A serious physical injury is an injury that creates a substantial risk of death, causes death, causes protracted disfigurement or impairment of health, or causes loss of a bodily organ. N.Y. Pen. Law § 10.00(10).
Defenses to an assault charge

Type of Injury. To be convicted of assault on a firefighter the injury cannot be slight. For a second degree assault charge based on assaulting a firefighter the injury must cause the victim substantial pain or physical impairment. For example, in People v. Rodriguez, 158 A.D.2d 376 (1990) the defendant was convicted of assault based on punching the victim in the leg. However, on appeal the court overturned the conviction, concluding that testimony from the victim that the injury hurt "a lot" and photos of slight bruising was not enough to sustain an assault conviction. For assault on a peace officer, police officer, fireman or emergency medical services professional the injury must be serious- presenting a substantial risk of death. If the injury is not as serious as the statute requires, then the prosecutor will have a difficult time convincing a judge or a jury that you should be convicted.

Lawful duty. In order to be convicted of an assault on a firefighter offense, you must have assaulted the firefighter while he or she was attempting to perform his or her lawful duties. Such duties may include not only putting out a fire, but also rescuing people and performing emergency medical treatment. If you do in fact assault a firefighter, but the firefighter was not in the process of performing his or her official duties, you have a valid defense against an assault on a firefighter charge. However, you may still be found guilty of another assault offense such as assault in the third degree.

Consequences of an assault on a firefighter conviction

If you are convicted of assault on a firefighter your sentence will include prison, payment of fines, fees, and restitution, and post-release supervision.

Prison

The actual length of your prison sentence will depend not only on the offense of which you are convicted but also on your prior criminal record. Based on your criminal record, you 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.

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. Even if you have no prior convictions 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. Part of your sentence will also include a term of post-release supervision.

Assault on a peace officer, police officer, fireman or emergency medical services professional

is a class C felony. The maximum possible sentence is 15 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 3 1/2 years in prison. Even if you have no prior convictions, then the minimum prison sentence you will receive is 3 1/2 years. If your status is that of a non-violent predicate offender the court will sentence you to at least 5 years for an assault in the second degree conviction, while if you are a violent predicate offender you will be sentenced to at least 7 years in prison. If you are a persistent felony offender 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 from prison you will have to serve a term of post-release supervision.

Post-release supervision

Because both assault on a firefighter offenses are violent felonies, if you are convicted of either such offense part of your sentence will also include a term of post-release supervision of 1.5-5 years. N.Y. Pen. Law § 70.45. 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. Common rules are that you will not be permitted to associate with others who have criminal records, go to unlawful places, or use controlled substances. You will be required to have a job or go to school, stick to a curfew, and report to your parole officer regularly. You will have to let you parole officer know if you change address and get permission to leave the state.

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 status is undisturbed, that you will be required to go back to jail for a period and then back on post-release supervision status, or that 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 a felony assault on a firefighter conviction in addition to being sentenced to 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. Furthermore, you will be required to pay a monthly fee related to post-release supervision 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 sentence requiring you to pay.

Long-term consequences

Even if you are sentenced to just the minimum prison sentence there will be consequences of being convicted of assault on a firefighter 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 make 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. You may be barred from admission into college or from living on campus. 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. If you are not a citizen of the United States, U.S. immigration law may require that you be deported.

Contact the Law Offices of Stephen Bilkis & Associates

Being arrested for assault on a firefighter or any other public safety or law enforcement official is very serious. If you are convicted you will be incarcerated for multiple years, have to pay fines and have a criminal record. However, there may be defenses to a charge of assault on a firefighter that only an experienced practitioner will understand. Thus, if you have been arrested for assault in the second degree or assault on a peace officer, police officer, fireman or emergency medical services professional it is important to immediately contact someone who is familiar with the New York criminal court 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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