New York Reckless Endangerment with a Gun

Reckless endangerment is a criminal offense that makes it illegal for you to act in a way that puts others in danger even if that was not your intent. Actions are considered reckless if those actions were committed without thought of consequence or outcomes. While there are many actions that could amount to reckless endangerment such as driving at high speeds in a residential neighborhood or setting a structure on fire, many reckless endangerment cases have been based on someone shooting a gun in a public area without regard to bystanders who might be injured or killed by the gunfire. While a reckless endangerment charge does not require anyone to suffer an injury, it does require others to be placed in danger of suffering a serious physical injury. If you have been charged with reckless endangerment based on the use of a gun it is important to immediately contact an experienced New York Reckless Endangerment with a Gun Lawyer who will carefully review the facts of your case and aggressively defend you from the beginning of your case until it is resolved.

Types of Reckless Endangerment with a Gun Charges

Under New York Penal Law there are there two reckless endangerment offenses that can involve using a gun: reckless endangerment in the second degree and reckless endangerment in the first degree. N.Y. Pen. Law §§ 120.20 and 120.25. Reckless endangerment in the second degree is a misdemeanor while reckless endangerment in the first degree is a felony. The difference between the two charges is that for second degree your actions must create a substantial risk of serious physical injury to another person while for the first degree charge your actions must show a grave indifference for human life.

A "serious physical injury" is defined as a physical injury that creates a substantial risk of death, that causes death, that causes a serious disfigurement, that causes a protracted impairment of health, or that causes the loss or impairment of the function of any bodily organ. New York courts have interpreted the phrase "depraved indifference to human life" to mean "an utter disregard for the value of human life— a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not."

While a court will consider the totality of the circumstances of a particular case to determine if a defendant's actions amount to a depraved indifference for human life, typically if there is just one victim and no bystanders in very close proximity were in danger, then the charge will be reckless endangerment in the second degree.

For example, in People v. Harvey 963 N.Y.S.2d 900 (2013), the defendant Jeuane Harvey was convicted of reckless endangerment in the second degree based on firing a weapon near an area where children were playing and pedestrians were walking. In all likelihood Harvey did not face the more serious charge of reckless endangerment in the first degree because the bystanders were no close enough to the line of fire. Similarly, in People v. Bianca, 936 N.Y.S.2d 743 (2012), defendant Michael Bianca was convicted of reckless endangerment in the second degree based on driving by a tavern several times and firing a gun at the tavern each time. There were several people standing outstand of the tavern at the time.

On the other hand the defendants were charged with reckless endangerment in the first degree based on using a gun in cases where there was at least one other person in close proximity to the defendant's target. For example, in People v. Heesh, 941 N.Y.S.2d 767 (2012), defendant Russell Heesh fired a gun through the window of his ex-girlfriend's bedroom window. At the time his ex-girlfriend and her new boyfriend were sleeping inside the bedroom. In People v. McGee, 930 N.Y.S.2d 117 (2011) defendant Demetrius McGhee and his co-defendant drove around a residential neighborhood intending to shoot a particular person. In the course of trying to shoot this person they shot a several residences. At the time there were several children playing in front of the houses. As a result, McGhee was convicted of reckless endangerment in the first degree.

Defense to a Reckless Endangerment with a Gun Charge

Depending on the facts of your case there may be a number of defenses to a charge of reckless endangerment with a gun. A defense to reckless endangerment in the first degree based on fireing a gun is the lack of bystanders. For example, in People v. Scott, 894 N.Y.S.2d 532 (2010), defendant Leroy Scott chased the victim and shot at him in an effort to rob him. At trial Scott was convicted of reckless endangerment in the first degree as well as several other charges. On appeal the court reversed the reckless endangerment in the first degree conviction. Since there was no one else around when Scott shot at the victim, the court reasoned that there was no evidence that anyone other than the intended victim's life was in danger by the defendant's actions.

Consequences of a Reckless Endangerment Conviction

If you are convicted of either reckless endangerment with a gun offense there is a strong possibility that your sentence will include incarceration. Furthermore, your sentence may also include probation and you may be ordered to pay a fine and restitution.

Keep in mind that if you are charged with reckless endangerment with a gun the prosecutor will probably charge you with other offenses such as attempted murder, criminal possession of a weapon, and assault. Your sentence will be greatly affected if you are also convicted of one or more additional crimes.

Prison

Whether or not you are sent to prison and the length of time you must spend in prison depends on whether you are convicted of reckless endangerment in the first degree or reckless endangerment in the second degree. Reckless endangerment in the first degree is a Class D felony. As such, the maximum possible sentence is 7 years in prison. On the other hand reckless endangerment in the second degree is a Class A misdemeanor with a maximum possible sentence of up to 1 year in jail.

For a felony, the minimum prison sentence that a judge is permitted to give depends on your prior criminal history. Even if you have no prior convictions and are then convicted of reckless endangerment in the first degree, because reckless endangerment is classified as a violent felony offense 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, 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, even though reckless endangerment in the first degree is a Class D felony 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 classified as a non-violent predicate offender if within the prior 10 years you were convicted of a non-violent felony offense, while you will be classified as a violent predicate offender if within the prior 10 years you were convicted of a violent felony offense. A persistent felony offender is someone who has been convicted of at least 2 felonies.

As for a reckless endangerment in the second degree conviction because it is a misdemeanor, the judge will have the option to not sentence you to jail, but to instead sentence you to a probation term.

Fines, Fees and Restitution

As part of your sentence the judge may order you to pay a fine and restitution. For reckless endangerment in the second degree the fine would be up to $1,000, while for reckless endangerment in the first degree the fine would be up to $5,000. Restitution is paid to the victim to cover out-of-pocket expenses he or she incurs as a result of the crime. For example, if you shoot a gun at a building the court may order you to pay to have a broken window repaired or bullet holes in the wall repaired. If the victim suffered an injury as a result of your reckless actions the court may order you to pay the victim's medical expenses. Generally, the maximum amount of restitution is $15,000 for a felony and $10,000 for a misdemeanor.

You will also be required to pay fees. One fee is referred to as a "mandatory surcharge." N.Y. Pen. Law § 60.35(1)(a). It is $300 for a felony conviction and $175 for a misdemeanor conviction. You may also be required to pay a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If you are placed on probation you will have pay probation supervision fees of $30 per month.

You will not have completed your sentence until you have paid the fine and restitution that court has ordered as part of your sentence. Furthermore, if you fail to pay a fine, fee or restitution the state may take funds from your prison account or garnish your wages. If you feel that you do not have the financial resources to pay, then you can petition the court for relief.

Probation

Part of your sentence for a reckless endangerment conviction may be probation. If you are convicted of second degree reckless endangerment you may be released on probation without serving anytime in jail, or your sentence may include a short time in prison, plus probation. If your sentence includes both incarceration and probation, your probation term will run concurrently with your term of incarceration. The term of probation would be 3 years for reckless endangerment in the second degree and 5 years for reckless endangerment in the first degree.

While serving your probation sentence you will be subject to many rules called Conditions of Probation. The purpose of the rules is the help ensure that you will not commit another crime. If you break any of the rules you would be in violation of your probation, and a judge could revoke your probation and resentence you to prison. The Conditions of Probation vary from person to person, but generally include the following rules.

  • You must not commit a crime. Even a minor infraction could result in a probation violation.
  • You must not associate with other people who you know have criminal records
  • You must not patronize unlawful or disreputable places
  • You must not possess controlled substances or drug paraphernalia
  • You must consent to warrantless searches without probable cause
  • You must submit to home visits by your Probation Officer
  • You must regularly report to your Probation Officer
  • You cannot leave the State of New York without permission
  • You must not own, possess or purchase a gun
  • You must refrain from the excessive use of alcohol
  • You must stick to a curfew
  • You must have job or be enrolled in school
  • You must pay any ordered fees, fines or restitution
Plea Agreement

As part of the criminal process the prosecutor may offer you the option of pleading guilty in exchange for a reduced charge or a lighter sentence then you would receive if you are found guilty after a trial. However, if you do plead guilty to a lesser charge that will mean that you will have been convicted of a crime and there will be consequences such as fees, fines, restitution, incarceration and a criminal record. The advantage of agreeing to a plea bargain is that you will not risk being found guilty of the original, more serious charges after a trial and then face a stiffer sentence.

Long-Term Consequences

If you are convicted of reckless endangerment in the second degree or reckless endangerment in the first degree you will end up with a criminal record which will negatively impact several aspects of your life. For example, with a simple background check a potential employer or a college admissions officer will quickly learn that you were convicted of reckless endangerment. As a result, you may lose many opportunities. You will also be barred from professions that required licensing issued by the state or federal government such as teaching, practicing law, driving a taxi and serving as a security guard. If you are not a citizen, under federal law you could be deported.

While reckless endangerment with a gun is not one of the more serious crimes defined in New York Penal Law, the consequences of a conviction are serious and long-lasting. If you are convicted there is a chance that you will end up in prison. You may be ordered to pay significant fines, fees and restitution. You will have a criminal record that may limit your professional opportunities. Because of the consequences of being convicted of reckless endangerment it is important to have experienced representation. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with reckless endangerment with a gun as well as other crimes such as assault, harassment, menacing, stalking, 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 robbery in the following locations:

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