Queens Assault

N.Y. Pen. Law § 120.00

Assault is one of most common crimes. If you punch, kick, shove, slap, bite, shoot, or stab another person causing that person to suffer an injury, you have committed an assault. There are several different types of assault charges in New York Penal Law related to the type of weapon used, the seriousness of the injury, and who the victim is. For example, there are specific assault offenses related to using a deadly weapon such as a knife, or a dangerous instrument. There are assault offenses related to the victim being a minor. There are also offenses related to the victim being a public service official such as a firefighter or a law enforcement official such as a police officer. In addition, regardless of who the victim is the more severe the injury, the more serious the assault offense. The punishment for the most serious types of assault such as assault in the first degree is up to 25 years in prison. If you have been charged with any type of assault, even misdemeanor assault, it is critical that you speak with an experienced Queens Assault Lawyer who will listen to the facts of your case and who will aggressively defend you against the charges.

Types of Assault

There are a number of different types of assault offenses in the New York criminal code.

  • Assault. There are 3 degrees of assault: assault in the third degree, assault in the second degree and assault in the first degree. N.Y. Pen. Law §§ 120.00, 120.05 and 120.10
  • Assault in the third degree is a Class A misdemeanor. To be charged with assault in the third degree you must have intended to cause physical injury to another person, and you must have in fact caused injury to that person or to a third person. You may also face a charge of third degree assault if you recklessly cause physical injury to another person, or if with criminal negligence you caused physical injury to another person using a deadly weapon. N.Y. Pen. Law § 120.00. Typically, this is the charge you will face if you assault someone and the injuries are not severe. For example, if you punch someone in the eye there is a good chance that you will face a third degree assault charge. While the injury may be painful, in many cases a black eye does not leave permanent damage and does not require much treatment.
  • Assault in the second degree is a Class D felony. There are several different factors that if present would raise an assault to the level of assault in the second degree. First, causing your victim to suffer a serious physical injury; second, using a deadly weapon or dangerous instrument; third, assaulting a police officer, nurse, firefighter, paramedic, prosecutor or any other official; fourth, assaulting a person who is at least 65 years old; and fifth, assaulting a person who is 11 years old or younger.
  • Assault in the first degree is a Class B felony. It carries a possible prison sentence of up to 25 years in prison. You will face a charge of assault in the first degree if you used a deadly weapon or dangerous instrument to cause serious physical injury to another person; if you permanently disabled another person; if with depraved indifference to human life you put another person at risk of death and doing so you seriously injured that person; or if while committing a felony you caused serious injury to another person.
  • Reckless assault of a child is a Class D felony. In order to face this charge you must be at least 18 years old. This type of assault involves causing serious injury to the brain of a child who is less than 5 years old by shaking, slamming, or throwing that child. N.Y. Pen. Law § 120.02.
  • Reckless assault of a child by a Day Care Provider is a Class E felony. This assault involves an owner or employee of a day care provider recklessly causing serious physical injury to a child who is less than 11 years old by shaking. N.Y. Pen. Law § 120.01. It is important to note that the standard for reckless assault of a child by a day care provider is different from the standard for reckless assault of a child.
  • Vehicular assault in the second degree is a Class E felony. You will face a charge of vehicular assault in the second degree if you drive you vehicle while under the influence of drugs or alcohol and seriously injure another person. N.Y. Pen. Law § 120.03
  • Vehicular assault in the first degree is a Class D felony. This offense is similar to vehicular assault in the second degree except that one of the following factors also is present: you have a blood alcohol level of at least .18; you have a license that was suspended or revoked in another state; you have a prior conviction for operating a motor vehicle while under the influence of alcohol or drugs; you cause serious injury to more than one person; you have a prior conviction for vehicular assault; you have a prior conviction of vehicular homicide; or you have a child who is 15 years old or younger in the car with you. N.Y. Pen. Law § 120.04
  • Aggravated vehicular assault is a Class C felony. You will face a charge of aggravated vehicular assault if you commit the crime of vehicular assault in the second degree while driving recklessly, and one of same factors is present as required for vehicular assault in the first degree. N.Y. Pen. Law § 120.04-a
  • Gang assault in the second degree is a Class C felony. You will face this charge if you have the intent to cause injury to another person and you in fact cause serious physical injury to another person with the aid of at least 2 other people. N.Y. Pen. Law § 120.06
  • Gang assault in the first degree is a Class B felony. You will face this charge if you have the intent to cause serious injury to another person and you in fact cause serious physical injury to another person with the aid of at least 2 other people. N.Y. Pen. Law § 120.07
  • Sexual assault is a general term to describe several different sex offenses including forcible touching, sexual abuse, criminal sexual act, sexual misconduct, sexual conduct against child, female genital mutilation, and facilitating a sexual offense with a controlled substance.
Consequences of an Assault Conviction

If you are convicted of an assault crime, your sentence may include incarceration, a fine, probation, or a combination of these penalties. Whether or not you are sent to prison depends largely on two factors: the seriousness of the crime of which you are convicted and your prior criminal record.

Prison and Fines
  • Class A misdemeanor. The maximum possible sentence is 1 year in jail and a fine of up to $1,000. The following assault offense is a Class A misdemeanor: assault in the third degree.
  • Class E felony. The maximum possible sentence is 4 years in prison and a fine of up to $5,000. The following assault offenses are Class E felonies: reckless assault of a child by a child day care provider, aggravated assault upon a person less than eleven and vehicular assault in the second degree.
  • Class D felony. The maximum possible sentence is 7 years in prison and a fine of up to $5,000. The following assault offenses are Class D felonies: assault in the second degree, reckless assault of a child, and vehicular assault in the first degree.
  • Class C felony. The maximum possible sentence is 15 years in prison and a fine of up to $5,000. The following assault offense is a Class C felony: gang assault in the second degree
  • Class B felony. The maximum possible sentence is 25 years in prison and a fine of up to $5,000. The following assault offenses are Class B felonies: assault in the first degree and gang assault in the first degree.

While each felony offense has a statutory maximum prison sentence based on the classification of the offense. However, if based on your prior criminal history you are deemed a persistent felony offender the court follows different sentencing guidelines. If you are convicted of a felony assault offense and you are a persistent felony offender, you could be sentenced to up to life in prison.

Probation

If you are convicted of assault your sentence may include probation. The term of probation will be 3 years for a misdemeanor conviction or 5 years for a felony conviction. For sexual assault the probation term will be twice as long. If your sentence includes both prison and probation, you will serve the terms concurrently.

While serving your probation sentence you will be subject to many rules. If you break any of the rules a judge could revoke your probation and resentence you to prison. The rules will include that you cannot commit another crime, you must have a job, you must not associate with disreputable people, you must not patronize disreputable places, you must not drink alcohol excessively, you must not use illegal drugs, and you must support your family. In addition, you will be required to report to your probation officer on the regular basis.

Post-Release Supervision

If convicted of an assault offense that is classified as a violent felony, part of your sentence will likely include a term of post-release supervision of up to 5 years. Like probation, while you serve your term of post-release supervision there will be several rules that you must follow. If you violate any of the terms of your post-release supervision you will receive a revocation hearing before a judge. Based on the evidence presented, the judge may allow you to continue with the post-release supervision with the terms undisturbed, require you to go back to jail for a period and then return to post-release supervision status, or require you to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Fees and Restitution

In addition to being ordered to pay fine 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. If your sentence includes probation or post-release supervision you will have to be a supervision fee of $30 per week. If you are convicted of a sex crime, there are additional mandatory fees that you will be required to pay.

As part of your sentence you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $10,000 for a misdemeanor and $15,000 for a felony. However, the court may increase the amount to cover the amount of the victim's medical expenses.

There are serious legal 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.

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 an Order of Protection, you could face additional criminal charges.

Additional Consequences

Even after you serve your prison term, probation term and pay your fees, fines and restitution, there will be additional long-term consequences to being convicted of assault.

  • Criminal record
  • Difficulty finding a job as most employers perform criminal background checks
  • Barred from certain careers and professional licensing such as teaching, practicing law, and operating a child day care business
  • Barred from owning a gun
  • Barred from serving on a jury
  • Ineligible for certain government benefits such as welfare or federally funded housing
  • Deportation, if you are not U.S. citizen- even if you are in the U.S. legally

If you have been charged with any type of assault offense, it is important that you immediately seek experienced legal guidance. The potential consequences of being convicted of assault are life-altering. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with crimes such as assault, 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:

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