New York Reckless Assault Of A Child

The most heinous crimes that you can be charged with are crimes where children are the victims. The injuries that a child can suffer as a result of an assault can be much more severe than if the victim was a child. Such injuries can cause permanent damage, leaving the child disabled for life. Reckless assault of a child is a specific type of assault against a child that involves results in brain damage. This type of injury commonly happens when the child's head is slammed against a wall, floor or some other hard surface. When a child arrives at a hospital and presents with such a brain injury, the parents are almost immediately suspected of causing the injury. Law enforcement is generally eager to punish those who injure children. In their zeal to do so, they sometimes erroneously point to the parents, family members, or caregivers. The mere accusation of beating up a child can be devastating to your personal and professional relationships. Thus, if you are in need of a criminal lawyer because 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.

Definition of reckless assault of a child

Reckless assault of a child is a criminal offense that is meant to protect children who are under 5 years old. You will face this charge if you are at least 18 years and you assault a child who is under 5 years old by shaking, slamming or throwing the child. In addition, as a result of the assault, the child suffers a serious brain injury. It is a class D felony and carries a possible prison sentence of up to 7 years. The type of injury that is required for you to face this charge includes:

  • Extreme rotational cranial acceleration and deceleration
  • Subdural hemorrhaging
  • Intracranial hemorrhaging
  • Retinal hemorrhaging
  • Other serious brain injury that is so severe that the child might die or suffer a protracted physical impairment

N.Y. Pen. Law §§ 10.00(10) and 120.02

The types of injuries that the child victim suffers are collectively commonly referred to as shaken baby syndrome and are linked to child abuse. However, to sustain such injuries a child does not have to be shaken, but could be thrown or slammed.

In People v. Moore, 976 N.Y.S.2d 587 (2013) defendant Dejon Moore was convicted of reckless assault of a child after admittedly shaking his girlfriend's 11-month old daughter because she would not stop crying. The child was found unresponsive, clenching her fists in pain, bruised, unable to hold her head up and her eyes were rolled back in her head. Doctors concluded that she suffered a traumatic brain injury.

It is important to know that unlike some other forms of criminal assault in order to be charged with reckless assault of a child, 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 to the child victim. Under New York criminal law, 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. 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. N.Y. Pen. Law § 15.05(3)

Defenses to an assault charge

Type of injury. In order to prove that you committed reckless assault against a child, the child must suffer very specific serious physical injury. If the injury is less than serious, then the prosecutor will not be able to prove a case of reckless assault against a child. The prosecutor must rely heavily on medical evidence to prove the type and extent of injuries. Likewise, you may also need to rely heavily on medical evidence to show that the case does not meet the statutory requirements. 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 charge, you may still be convicted of another offense such as reckless endangerment, child endangerment, or assault in the first, second or third degree.

Misidentification. When a child suffers brain injury the severity of the injuries and symptoms may not be apparent for hours or even a few days after the assault. For example, common signs of traumatic brain injury include vomiting, sleepiness, disorientation and headache. Such symptoms in a child who is less than 5 years old may not alarm a parent or caregiver enough to seek medical assistance. Thus, when medical assistance is finally sought it may be unclear as to who was likely responsible for the child's injuries or when the injuries occurred. For example, in People v. Groth, 896 N.Y.S.2d 547 (2010) defendant Matthew Groth, the father of the child, was convicted of reckless assault against a child. The 2 1/2 month old child suffered bleeding in the brain and in the eyes as well as two fractured ribs. Upon appeal the court found that the evidence did not support Groth's conviction because the child experienced vomiting and showed other signs of distress 2-3 days prior to when Groth was alleged to have assaulted the child.

Consequences of an assault conviction

If you are convicted of reckless assault of a child your sentence will include prison, payment of fines and fees, and post-release supervision. In addition, an Order of Protection will likely be placed against you in favor of the child.

Prison

Reckless assault of a child is a class D felony. The maximum possible sentence is 7 years in prison. N.Y. Pen. Law § 70.02. Because reckless assault of a child 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.

  • 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, the judge will be required to sentence you to at least 2 years in prison. If your status is that of a non-violent predicate offender, then the court will sentence you to at least 3 years for a reckless assault of a child 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 and the maximum sentence is life in prison. N.Y. Pen. Law § 70.08. 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 reckless assault of a child your sentence will also include a term of post-release supervision of 1.5-3 years. N.Y. Pen. Law § 70.45(e). The purpose of post-release supervision is to ensure that when you are released from prison, you experience a smooth re-integration into the community. Conditions will be placed on you to ensure this smooth re-integration and to help ensure that you do not reoffend:

  • You must not commit a crime
  • You must not hang around others 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 drug or alcohol education class
  • You must refrain from consuming alcohol
  • 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
  • If you move you must let your Parole 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

If you fail to follow the rules associated with your post-release supervision, you risk going back to prison.

Fines, fees and restitution

Being convicted of reckless assault of a child also can have substantial financial consequences as you will likely be required to pay a fine, fees and restitution. In addition to being sentenced from 2 to 7 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 fees related to your post-release supervision of $30 per month.

Another financial consequence of a reckless assault of a child 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.

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 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. If you live with the victim, an exclusionary order of protection may be issued, requiring you to move. If you are the parent of the victim, you will 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 a domestic violence incident, was arrested and charged with criminal contempt in the second degree based on violation of an order of protection. 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 reckless assault of a child 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 will not be able to get a license to operate a child day care business. 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 the victim is your child or another family member, your relationship with your family may be irreparably harmed.

Contact the Law Offices of Stephen Bilkis & Associates

Being arrested for reckless assault of a child is serious. If you are convicted, many aspects of your life may change forever. Not only will you end up in prison, but the relationship with your family will be strained. However, there may be defenses to a charge of reckless assault to a child 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 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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