New York Gang Assault In The First Degree

Assault is one of the most common crimes in New York and across the country. Simply put, it involves using violence to injure another person. For example, if you beat up someone in a bar fight, you would have assaulted that person. Or, if you shoot someone with a gun, you would have assaulted that person. Many acts of domestic violence and child abuse involve assault. In fact, there are several different types of assault under New York Penal Law. One type is called gang assault. Gang assault is the charge you will face if you and at least 2 other people operate in concert to assault another person. It is not necessary for the group to be part of an organized street gang. For purposes of the assault statute a "gang" is simply 3 or more people assaulting another person. There are 2 types of gang assault: gang assault in the first degree and gang assault in the second degree. While both are serious felonies gang assault in the first degree carries a punishment that is more severe. If you are in need of a criminal lawyer because you have been charged with gang assault in the first degree it is important that you immediately contact an experienced New York gang assault in the lawyer who will vigorously defend you to ensure that your case is resolved in the best possible manner given the facts of your case.

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, DWI, grand larceny, 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 gang assault in the first degree

There are 2 degrees of gang assault: gang assault in the second degree and gang assault in the first degree. Gang assault in the first degree is the more serious offense. You will face this charge if you assault another person and are aided in the assault by at least 2 other people. Your intent must have been to cause serious physical injury and as a result of the assault the victim must have actually suffered serious physical injury. It is a class B felony. Physical injury is defined as one that causes an impairment of physical condition or substantial pain, while serious physical injury is one that is so serious that it 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). The difference between a second degree gang assault charge and a first degree gang assault charge is the intent. For a second degree charge your intent would have been to cause physical injury while for a first degree charge you intent would have been to cause serious physical injury.

The court will determine whether or not you intended to cause the victim serious injury by looking at your actions. For example, in People v. Meachem, 922 N.Y.S.2d 721 (2011) the court found that the natural and probable consequences of repeatedly striking a defenseless victim is that the victim would sustain a serious physical injury. Thus, it was reasonable to conclude that that was the defendant's intention.

Defense to a gang assault charge

The lack of seriousness of the victim's injury may provide a defense to a charge of gang assault in the first degree.A gang assault in the first degree charge is based on the defendant intending to cause serious physical injury and the victim suffering serious physical injury. If either of these factors is absent, you have a valid defense against the charge. The court will look closely at medical evidence to determine whether or not the victim suffered from a serious injury. Factors which courts may consider include:

  • Whether the victim lost consciousness
  • Whether the victim was able to hold
  • Whether the victim suffered a permanent scar
  • Whether the victim experienced a great deal of pain
  • Whether any vital organs were damaged
  • Whether the victim has to undergo surgery

For example, in People v. Mazariego,986 N.Y.S.2d 235 (2014)the court declined to uphold a gang assault in the first degree charge where after being stabbed by the defendant, the victim needed no stitches, remained conscious, was able to hold a conversation, and was not disoriented. In People v. Tucker, 936 N.Y.S.2d 386 (2012), while the attending physician testified that the stab wounds that the victim received could have caused a substantial risk of death, he did not testify that they had in fact presented a substantial risk of death for the victim. Thus, the court concluded that the victim did not suffer a serious physical injury and the defendant's conviction for gang assault was overturned.

Arrest and arraignment

If you are arrested for gang assault in the first degree, first you will be taken to the local police precinct. Within 24 hours of your arrest you will be arraigned. At your arraignment hearing you will learn the exact charges against you. In some cases the charges will be different from what you expected. Based on a review of the evidence, the prosecutor may decide to raise or lower the charges, or to add additional charges. You will also learn whether or not bail will be required.

Because gang assault in the first degree is a felony New York law requires that the prosecutor present your case to the Grand Jury. The Grand Jury will decide whether you should be indicted, meaning charged with a crime. If you are indicted, you may be able to negotiate a plea bargain with the prosecutor. There are rules regarding plea bargains and indicted felony cases. Since grand assault in the first degree is a class B drug felony, the best "deal" that the prosecutor can offer is for you to plead guilty to a class D felony. If you are not able to reach a plea agreement with the prosecutor then your case will go to trial.

Consequences of a gang assault conviction

If you are convicted of gang assault in the first degree your sentence will include prison, payment of fines and fees, and post-release supervision.

Prison

Because gang 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 it is also 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.

  • 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. 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. Cordato, 924 N.Y.S.2d 649 (2011) defendant Kari Cordato was convicted of gang assault in the first degree. Because she had a prior non-violent felony conviction Cordato was sentenced to 15 years in prison.

Post-release supervision

If convicted of gang assault in the first degree part of your sentence will also include a term of post-release supervision of up to 5 years. N.Y. Pen. Law § 70.45. There will be several rules that you must follow while you are on post-release supervision. The purpose of the rules are to ensure that you have a smooth transition back in to the community and to minimize the likelihood that you re-offend. Such rules will require you to not commit any more crimes, refrain from associating with others with criminal records, patronizing unlawful places, possessing controlled substances, or possessing a gun. You must agree to warrantless searches, drug testing and home visits by your Parole Officer. You also will be required to stick to a curfew and hold a job or go to school. If you violate any of the terms of your post-release supervision, your post-release supervision may be revoked resulting you having to go back to prison.

Fines, fees and restitution

As with being convicted of any type of violent crime being convicted of gang assault in the first degree will have significant financial consequences as you will be required to pay a fine, fees and restitution. The judge may order you to pay a fine of up to $5,000. Furthermore, you will be required to pay a "mandatory surcharge" of $300, a victim assistance fee of $25. N.Y. Pen. Law § 60.35, as well as a parole supervision fees of $30 per month.

Another financial consequence of an assault in the first degree conviction is that you will have 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 the ordered fine, fee or restitution, you may be charged with a crime 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.

Long-term consequences

Even after you serve your prison term, post-release supervision term and pay your fees, fines and restitution, there will be additional long-term consequences to being convicted of gang assault in the first degree.

  • Criminal record
  • Difficulty finding a job
  • Barred from certain careers and professional licensing such as teaching, practicing law, and operating a child day care business
  • Barred from owning a gun
  • Barred from serving on a jury
  • Ineligible for certain government benefits such as welfare or federally funded housing
  • Deportation
Contact the Law Offices of Stephen Bilkis & Associates

Being arrested for gang assault in the first degree is serious. If you are convicted many aspects of your life may change forever. However, there may be defenses to a charge of gang assault that only an experienced practitioner will understand. Thus, if you have been arrested for gang assault in the first degree, second degree or any assault charge, it is important to immediately contact someone who understands the New York criminal system. The staff at Stephen Bilkis and Associates has years of experience successfully defending clients in New York criminal courts who have been charged with gang assault as well as other assault crimes, menacing, reckless endangerment, stalking, and rape. 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 assault in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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