New York Reckless Assault of a Child By a Child Day Care Provider

Child abuse is a serious problem. It can occur practically anywhere, including the home of the child, the child's school, at a friend's home, or at a relative's home. Abusers can be the child's parents, other relatives, family friends, or anyone entrusted with the care of the child. When a child is assaulted by a child care provider, the charge that person would face is reckless assault of a child by a child day care provider. The penalty if convicted of this felony can include not only jail time, but also the payment of fines, fees, and restitution. Furthermore, your professional reputation as a child care provider will be ruined. Thus, if you are in need of a criminal lawyer because if you are suspected of assaulting a child, even if you have not yet been arrested, it is a good idea to get ahead of the situation and immediately contact an experienced New York reckless assault of a child lawyer who will explain to you your legal options and vigorously defend you until the 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, 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.

You will be charged with reckless assault of a child by a child day care provider if you are child day care provider or an employee of a child day care provider and you recklessly cause serious physical injury to a child who is under 11 years old. It is a class E felony. A "child day care provider" is defined as any individual, association, corporation, partnership, institution or agency that provides child day care. "Child day care" is regularly caring for a child at a place other than the child's residence for less than 24 hours a day by someone other than a relative. N.Y. SOS. Law § 390.

Unlike the similar crime of reckless assault of a child, reckless assault of a child by a child day care provider does not require that the injury be a serious brain injury, nor does it require that the injury be due to or consistent with shaking, slamming or throwing the child. Serious physical injury is defined as an injury that creates a substantial risk of death, that causes death, or that causes serious disfigurement or impairment. N.Y. Pen. Law § 10.00(10).

Like reckless assault of a child, with reckless assault of a child by a child day care provider intent to cause serious physical injury is not necessary. All that is necessary is that your actions were reckless and resulted in the serious injury of the child victim. New York Penal Law provides that you would have acted recklessly if you were aware of and disregarded a significant risk that your actions would result in such an injury to the child. N.Y. Pen. Law § 15.05(3). One example of reckless behavior is voluntary intoxication. For instance, if you get drunk and then assault a child, your actions would be deemed reckless.

If you are charged with reckless assault of a child by a child day care provider, there is a good chance that you will face other criminal charges such as endangering the welfare of a child, reckless endangerment, assault, or child sexual assault.

Type of Injury. In order to prove that you committed reckless assault against a child, the child must suffer a serious physical injury. If the injury is less than serious, then the prosecutor will not be able to sustain a case of reckless assault against a child. Medical testimony will be pivotal in determining the extent and severity of the injuries to the child. However, if the prosecutor was able to show that you assaulted a child, even if the child's injuries were not serious enough to sustain a reckless assault of a child by a child day care provider, you may still be convicted of another offense such as reckless endangerment, endangering the welfare of a child, or assault in the third degree.

Misidentification. Oftentimes the severity of an injury to a child does not become apparent for hours or days after an assault. For example, lethargy, vomiting and a headache may be a sign of a serious injury or illness, may be sign of a minor injury or illness, or may not indicate an injury or illness at all. However, as time passes and the symptoms persistent it may become apparent that there is serious problem that requires medical attention. When medical assistance is finally sought it may be unclear as to who was likely responsible for the child's injuries or when the injury occurred or when the injury occurred. Parents may point the finger at the child care provider when there is little evidence that that person was responsible.

If you are convicted of assault of a child by a day care provider your sentence may include prison, probation, and payment of fines, fees, and restitution.

Reckless assault of a child by a child care provider is a class E felony. The maximum possible sentence is 4 years in prison. N.Y. Pen. Law § 70.02. The actual 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.

If you have no prior convictions, the judge may sentence you to probation. If your status is that of a predicate offender, then the court will sentence you to at least 1 1/2 to 3 years. 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.

If convicted of reckless assault of a child by a child day care provider and your sentence includes probation, the term of probation will be 5 years. While on probation you will be subject to a number of rules and restrictions. While such rules vary from person to person, they are likely to include the following:

• You must not commit a crime
• You must not associate with other people who have criminal records
• You must not go to unlawful or disreputable places
• You must not possess or use a controlled substance
• You must submit to drug testing
• You must attend a substance abuse program
• You must refrain from consuming alcohol
• You must seek medical or psychiatric treatment
• You must consent to warrantless searches
• You must regularly report to your Probation Officer
• You cannot leave the State of New York without permission
• If you move you must let your Probation Officer know of your new address
• You must now possess a gun
• You must stick to a curfew
• You must have job or attend school
• You must support your family

If you fail to follow the rules associated with your probation, you risk going back to prison.

Being convicted of reckless assault of a child by a child day care provider can also have substantial financial consequences as you will likely be required to pay a fine, fees and restitution. In addition to being sentenced to up to 4 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 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, because the child's injuries would be so severe, the court may increase the amount to more than $15,000 to cover the child 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 a judgment may be obtained 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.

Even if you are sentenced to just probation, there will be consequences of being convicted of reckless assault of a child by a child care provider for years into the future. You will have a criminal record that will make several aspects of your life more challenging. If you operate a child care center, you may lose your license. Even worse, your reputation as a child care provider will be ruined. You may have a tough time getting a job. 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.

Being arrested for reckless assault of a child by a child care provider is serious. If you are convicted you may no longer be able to provide child care services. However, there may be defenses to a charge of reckless assault to a child by a child care provider that only an experienced practitioner will understand. 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 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.