Queens Assault in the First Degree

N.Y. Pen. Law § 120.10

Assault in the first degree is one of the most serious crimes that you can commit in New York. It is classified as a violent criminal offense that is a Class B felony. The crime of assault involves intentionally, recklessly or negligently harming another person. There are many different ways that you can assault another person. However, if the injury that the victim suffers from your assault is a serious physical injury, the charge you will face will likely be assault in the first degree and not one of the less severe assault offenses of assault in the second or third degree. If you are convicted of assault in the first degree you will without doubt end up on prison for several years. If you are charged with assault in the first degree, however, you are permitted to present defenses to such a charge. Thus, it is important that you contact an experienced Queens Assault in the First Degree Lawyer who will understand which defenses are available given the facts of your case and who will aggressively defend you against the charges.

Definition of Assault in the First Degree

New York Penal Law includes 3 degrees of the crime of assault including assault in the first degree, second degree and third degree. Assault in the first degree is the most serious of the three offenses. It is a Class B felony and carries a possible prison sentence of up to 25 years.

There are 4 factors that will cause an assault to rise to the level of a first degree assault.

  1. 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: means 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. A vehicle is one example of a dangerous instrument. N.Y. Pen. Law § 10.00(13). Serious physical injury means an injury that is so severe that the there is a good chance that the victim might die or suffer a protracted physical impairment. N.Y. Pen. Law § 10.00(10).

  2. You 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.

  3. You 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.

  4. You assault another person while you are committing a felony, attempting to commit a felony, or fleeing after you have committed or attempt to commit a felony, as a result cause serious physical injury to another person.

Being Arrested for Assault in the First Degree

If you are arrested because you are an assault in the first degree suspect, because of the seriousness of the charge you will be immediately taken to the local precinct and then to Central Booking. You will remain in Central Booking for several hours until your arraignment. An arraignment is where you will first appear before a judge and where the prosecutor will present the charges against you. While you may be under the impression that you are being charged with assault in the first degree, at the time of your arraignment you may discover that the prosecutor decided to charge you with additional crimes.

The judge will also make a decision about bail at your arraignment. The judge may set a dollar amount for your bail, decide that you should be held without bail, or you may be released on your own recognizance. You will be told the date of your next hearing.

Defenses to an Assault Charge

Injury. In order to charge you with assault in the first degree, the prosecutor must be able to show that the victim's injury was so severe that the there was a good chance that the victim might die or suffer a protracted physical impairment. N.Y. Pen. Law § 10.00(10). If you can show that the victim's injuries were in fact not serious, then you may have a valid defense to assault in the first degree charges. You may still face a less severe assault charge such as assault in the third degree. However, if convicted the penalty would not be as harsh.

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. If you injure someone who attacked you or who you have a reasonable fear was about to physically harm you, you may have a valid defense to an assault charge. For example, in People v. Fermin, 828 N.Y.S.2d 546 (2007), the defendant was convicted of assault in the first degree after having shot the victim. On appeal, however, the court set aside the conviction noting that because the victim approached the defendant with a gun and the defendant may have been justified in shooting the victim based on self-defense.

Consequences of an Assault Conviction

If you are convicted of assault in the first degree your sentence will include incarceration, a fine and probation. In addition, an Order of Protection may be issued against you. It is important to understand that if you are charged with assault in the first degree, depending on the facts of your case, you may face additional criminal charges. If you are convicted of multiple offenses, your sentence will be negatively impacted.

Prison

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.

  • Prior convictions: Generally, you will be considered to have prior convictions if you have been convicted of a felony within the prior 10 years.
  • Non-Violent Predicate Offender: You have been convicted of a non-violent felony within the last 10 years.
  • Violent Predicate Offender: You have been convicted of a violent felony 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. For example, in People v. Miller, 062014 NYAPP4, 2014-04641 (June 20, 2014), defendant Damien Miller was convicted of assault in the first degree. Because he was also convicted of burglary in the second degree Miller was sentenced as a predicate violent offender for the first degree assault conviction. He was sentenced to 15 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. White, 961 N.Y.S.2d 603 (2013), defendant Thomas White was accused of abducting a victim and causing the victim serious physical injury. White pleaded guilty to assault in the first degree. Thomas was sentenced as a second felony offender, receiving a sentence of 22 years in prison.

Post-Release Supervision

If convicted of assault in the first degree part of your sentence will include a term of post-release supervision of 2.5-5 years. N.Y. Pen. Law § 70.45(f). For example, in People v. Medina, 951 N.Y.S.2d 88 (2012) defendant Raymond Medina was convicted of assault in the first degree and was sentenced to 7 years in prison and 5 years post-release supervision.

There will be several rules that you must follow while you are on post-release supervision. The rules associated with your post-release supervision will include that you must not commit a crime, you may not leave the State of New York without permission, you must consent to warrantless searches, you must not associate with people who have criminal records, you must now own, possess or purchase a gun, you must not possess a controlled substance or drug paraphernalia, you must refrain from consuming alcohol, you must stick to a curfew, you must have job, and you must regularly report to your Parole Officer.

If you violate any of the terms of your post-release supervision, you will receive a revocation hearing. Based on the evidence presented the outcome of such a hearing may be that your post-release supervision statutes is undisturbed, you will be required to go back to jail for a period and then back on post-release supervision status, or you may be required to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Fine, Fees and Restitution

Part of the consequences of a criminal conviction in New York are financial. The judge may order you to pay a fine and restitution as part of your sentence. In addition, there are statutory fees that you will be required to pay. There are serious legal consequences to not meeting your financial obligations. You could be arrested and charged with criminal contempt. If you are on probation, your probation could be revoked. However, if you do not have the financial ability to 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.

Fine. Your sentence may also include the payment of a fine of up to $5,000.

Fees. If you are convicted of a crime in New York, you will be required to pay certain fees. For a felony conviction you will have to pay a mandatory surcharge of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If your sentence includes post-release supervision, you may also be required to pay a monthly supervision fee.

Restitution. Restitution is paid to the victim to cover out-of-pocket expenses that result from a crime. Generally, the maximum amount of restitution is $15,000 for a felony conviction, plus a 5% surcharge. N.Y. Pen. Law § 60.27. However, the court has the discretion to order that you pay a higher amount, provided that the excess amount is limited to paying for the victim's medical expenses. N.Y. Pen. Law § 60.27(5)(b). For example, in the case of People v. Hodges, 888 N.Y.S.2d 224 (2009), the court ordered the defendant to pay restitution in the amount of $705,000.

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 designed to keep the victim safe by limiting your actions. For example, an Order of Protection may state that you are not permitted to go near the victim, the victim's children and the victim's place of employment. If you live with the victim, you may be ordered to move.

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 is unwarranted, 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.

Other criminal charges

If you are charged with assault in the first degree there is a possibility that you may face additional criminal charges such as criminal possession of a weapon and robbery. If you are convicted of any additional crime the amount of time that you will have to spend in prison may be significantly more.

Long-Term Consequences. The consequences of being convicted of assault in the first degree go well beyond your prison sentence, your probation sentence, or any monetary payment you are ordered to make. You will have a criminal record that could impact the rest of your life. For example, with a simple background check a potential employer could discover your criminal record and decide not to hire you. Similarly, some colleges perform background checks as part of the admissions process. If you have a criminal record some schools may decline to admit you. Also, several professions such as doctor, teacher, lawyer, taxi driver and security guard require licensing. You may be able to get a license or you may lose your license if you are convicted of a crime.

It is important to understand that if you are convicted of first degree assault, you will go to prison for years. The judge will not sentence you to just probation. After prison you will face life with a criminal record that includes a violent felony conviction. The best way to fight an assault in the first degree charge is to make sure that you 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 assault in the first degree as well as other serious crimes such as stalking, reckless endangerment, robbery, and rape. 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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