Queens Assault at a Bar

N.Y. Pen. Law §§ 120.00, 120.05

Assaults often occur at bars, taverns and nightclubs. The combination of often excessive consumption of alcohol, loud music, late nights and crowds seems to be the perfect recipe for short tempers to turn verbal disagreements into physical fights. While the fights sometimes occur between patrons, security guards and bouncers who intervene to stop or prevent a fight sometimes become participants in the fight. If you are in a fight at a bar, you may see it as a simple disagreement that got out of hand. No big deal. Wrong. If you are involved you could face serious criminal assault charges. The typical assault charge stemming from a bar fight is assault in the third degree. It will be the charge you will face if you assault another person and cause that person a physical injury that is not serious. For example, if you kick another person causing a cut that only requires bandaging but no stitches or other emergency room treatment the charge you are likely to face is assault in the third degree, a misdemeanor. However, if you assault someone and that person sustains serious physical injuries or if you use a gun, knife or some other object during the assault, the assault charge you will face will be more serious than assault in the third degree. A conviction could send you to prison for a long time. Thus, if you have been charged with assault after being involved in a fight at a bar, tavern or nightclub, it is important that you speak with an experienced Queens Assault at a Bar Lawyer who will explain to you your legal options and who will aggressively defend you against the charges.

Types of Assault at a Bar Offenses

Assault in the Third Degree. New York Penal Law includes 3 degrees of the crime of assault including assault in the first degree, second degree and third degree. If you assault someone at a bar you could face any one of these assault charges.

Assault in the third degree is the least serious of the three offenses. You will face a charge of assault in the third degree if you intentionally or reckless injure someone, or if with criminal negligence you assault someone. It is a Class A misdemeanor and carries a possible prison sentence of up to 1 year in jail. N.Y. Pen. Law § 120.00

Assault in the third degree is a common charge for when one person initiates a fight with another person at a bar, tavern or night club, or one person "beats up" another person. In order to face this charge, the victim must suffer an injury that causes impairment or substantial pain. However, it is not necessary for the injury to be serious or life-threatening. For example, the defendant in People v. Enos, 398 N.Y.S.2d 760 (1977), was convicted of assault in the third degree after kicking the victim in the head while at a bar, causing the victim to lose consciousness.

Assault in the second degree. An assault at a bar will be considered to be assault in the second degree if the victim suffers a serious physical injury or if you use a deadly weapon or dangerous instrument.

  • You assault another person and cause serious physical injury to that person or to a third person. N.Y. Pen. Law § 120.05(1). Serious physical injury means an injury that is so severe that there is a good chance that the victim might die or suffer a protracted physical impairment. N.Y. Pen. Law § 10.00(10). In the case of People v. Burns, 281 A.D.2d 704 (2001) defendant Shonnell Jones was convicted of assault in the second degree based on using a razor blade to sever the temporal artery of the victim during a fight outside a nightclub.
  • You assault another person using a deadly weapon or dangerous instrument and cause that person to suffer a physical injury. The statute defines a deadly weapon as a gun or a knife. However, a dangerous instrument could be just about anything capable of causing serious physical injury. For example, in People v. Tehonica, 847 N.Y.S.2d 257 (2007), a pool cue was deemed a dangerous instrument when it was used in a bar fight.

Assault in the First Degree. Assault in the first degree is the most serious type of assault charge you could face for assaulting someone at a bar. You will face this charge if you:

  • Assault another person with a deadly weapon or dangerous instrument, causing serious physical injury to that person or to a third person. N.Y. Pen. Law § 120.10. New York's criminal statute gives several examples of what is considered a dangerous weapon: any loaded weapon from which a shot may be discharged, a knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles. N.Y. Pen. Law § 10.00(12). A dangerous instrument is defined as anything that is capable of causing death or serious injury. For example, in the case of People v. Sharpe, 896 N.Y.S.2d 189 (2010) a bar stool was used as a dangerous instrument.
  • Assault another person intending to seriously or permanently disfigure that person, and you do in fact seriously or permanently disfigure that person or a third party.
  • Assault another person such that you demonstrate a depraved indifference to human life, or you engage in conduct that is so reckless that you create a grave risk of death to another person and in fact cause serious injury to another person.
The Arrest and Arraignment

If you are accused of assaulting someone at a bar, tavern or nightclub, you will be arrested and taken to the local police precinct. Within approximately 24 hours of your arrest you will be arraigned. At your arraignment 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.

Defenses to an Assault Charge

Severity of Physical Injury. In order to sustain a charge of assault in the third degree, the victim must have sustained a physical injury. While it is not necessary for the injury to be severe, there must be some evidence of an injury other than the victim complaining that he or she was hurt.

Self-Defense. Under New York law you are permitted to use reasonable force to protect yourself or another person from imminent physical danger. N.Y. Pen. Law § 35.15. However, the court will not permit you to raise this defense if based on the facts of the case you could not have reasonably believed that you were in imminent physical danger.

Mistaken Identity. When an assault occurs in a bar, tavern, or nightclub the atmosphere makes mistaken identity a strong possibility. Such places tend to be crowded, chaotic, dark and loud. In addition, patrons and guests are often intoxicated by alcohol. The use of controlled substances is not unusual. Fights between 2 people can quickly escalate to melees in which many people are involved. In such cases it is not uncommon for a victim to identify the wrong person as the assailant. In People v. Diaz, 982 N.Y.S.2d 445 (2014), the defendant Hubert Diaz was convicted of attempted assault in the first degree based on hitting the victim in the head with a machete. The victim latter picked out Diaz from a photo lineup. On appeal the court overturned the conviction noting that there were questions as to the victim's identification of the defendant since the night club was crowded and dimly light.

Consequences of an Assault at a bar conviction

The sentence for an assault at a bar conviction depends on two primary factors: the seriousness of the assault offense and your criminal record. Because assault in the third degree is a Class A misdemeanor if convicted the maximum sentence is up to a year in jail. In fact, it is possible that the judge may instead sentence you to probation. On the other hand, for convictions on assault in the first degree or assault in the second degree charges, you will be sentenced to prison. In addition, the court will order you to pay fees, a fine, and restitution.

Prison

Assault in the third degree. Assault in the third degree is a Class A misdemeanor. This means that maximum amount of time behind bars that you will face is 1 year.

Assault in the second degree. 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. The actual length of your prison sentence will depend on factors such as your prior criminal record. Even if you have no prior convictions, then 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. Upon release you will be required to serve a term of post-release supervision.

Assault in the first degree. 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 assault in the first degree is 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. You will be classified based on your prior criminal record. 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.

Probation

If you are convicted of assault in the bar all or part of your sentence may be probation. Probation is a type of sentence that allows the offender to avoid incarceration and live in the community subject to certain conditions. The mandatory probation term for misdemeanors is 3 years and felonies is 5 years. The general rules associated with probation include that:

  • You must not commit a crime
  • You must not leave the State of New York without permission
  • You must consent to warrantless searches
  • You must not associate with people who you know have criminal records
  • You must not patronize unlawful or disreputable places
  • You must not possess a firearm
  • You must not possess a controlled substance or drug paraphernalia
  • You must refrain from consuming alcohol
  • You must undergo psychiatric treatment
  • You must complete an alcohol or substance abuse program
  • You must stick to a curfew
  • You must have job or attend school
  • You must submit to electronic monitoring
  • You must perform community service
  • You must pay restitution to your victim
  • You must notify your Probation Officer of a new address
  • You must regularly report to your Probation Officer

N.Y. Pen. Law § 65.10.

If you violate any of the terms of your probation a judge may send you to prison.

Fines, Fees and Restitution

Your sentence may also include the payment of a fine of up to $1,000. If you are convicted of a crime in New York, you will be required to pay certain fees. You will have to pay a mandatory surcharge of $25-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay a probation supervision fee of $30 per week.

As part of your sentence you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. For example, in People v. Tehonica the defendant was ordered to pay $10,889.40 in restitution. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses.

There are serious consequences to failure to pay court ordered fines, fees or restitution. For example, typically the payment of restitution is a condition of probation. If you fail to make restitution payments as ordered, the prosecutor may file a motion to revoke your probation. Should the court rule that you have indeed violated your probation you probation could be revoked and you could be sent to prison.

Order of Protection

If you are charged with assaulting someone at a bar or nightclub, the prosecutor will probably request that the judge issue an Order of Protection against you in favor of the victim. This means that you will not be permitted to follow, harass, or communicate with the victim. If you violate the Order of Protection you will face additional criminal charges. Keep in mind that even if you feel that the assault charge was not warranted, and therefore the Order of Protection not necessary, as long as the court has issued an Order of Protection, you must follow it or risk a contempt of court charge.

Criminal Record

Following your conviction, you will end up with a criminal record that will negatively impact your life. Having a criminal history, especially one that includes a serious felony such as assault in the first degree, will make it difficult for you to find a job. Employers are legally permitted to deny you employment if the crime you were convicted of has a bearing on the job responsibilities. Some employers may feel that having a history of assault is problematic, particularly if the assault conviction is for assault in the first degree or assault in the second degree.

It is important to keep in mind that a fight, whether it occurs in a bar, tavern, night club or some other establishment can result in assault charges. The consequences of an assault in a bar conviction are serious including incarceration, payment of substantial fines, and probation. In addition, you will end up with a criminal record that will stay with you for the rest of your life. However, just because you were in a bar fight does not mean that you deserve to be convicted of assault. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with assault based on an incident at a bar, tavern or nightclub. 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:

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