Queens Assault on a Firefighter

N.Y. Pen. Law §§ 120.05, 120.08

Assault involves using violence to intentionally or recklessly injure another person. While law enforcement considers any type of assault serious, law enforcement takes particular exception to assaulting a firefighter who is trying to perform his or her duties. When firefighters do their jobs they save lives. If they are in any way hindered from performing their duties someone could die. For this reason the New York legislature saw fit to pass an assault law that specifically addresses firefighters. If you are convicted of assaulting a firefighter you will go to prison for a minimum of 2 years and up to life. Probation will not be an option. However, in their eagerness to punish anyone who is accused of hurting a firefighter, prosecutors sometimes misinterpret the evidence. If you have been charged with assault on a firefighter it is important that you immediately contact an experienced Queen Assault on a Firefighter Lawyer who will review the facts of your case and aggressively fight the charges against you until your case is resolved.

Elements of Assault on a Firefighter

If you assault a firefighter you could be charged with either assault in the second degree or assault on a peace officer, police officer, fireman or emergency medical services professional. The charge you will face depends on the seriousness of the injury you cause the firefighter.

  1. Assault in the second degree. You will face this charge if you assault a firefighter in order to prevent the firefighter from performing his or her duties and cause physical injury. N.Y. Pen. Law § 120.05. It is a Class D felony. Physical injury means an injury that causes a physical impairment or substantial physical pain. N.Y. Pen. Law § 10.00(9).
  2. Assault on a peace officer, police officer, fireman or emergency medical services professional. You will have committed this crime if with intent to prevent a firefighter from performing his or her lawful duty, you cause that firefighter serious physical injury. N.Y. Pen. Law § 120.08. It is as Class C felony. A serious physical injury is an injury that creates a substantial risk of death, causes death, causes protracted disfigurement or impairment of health, or causes loss of a bodily organ. N.Y. Pen. Law § 10.00(10).
The Arrest and Arraignment

In some cases if you are suspected of committing a crime and are arrested the police officer will issue you a Desk Appearance Ticket (DAT). With a DAT you are required to show up at a specified place and time for your arraignment. You will not be detained in Central Booking while awaiting your arraignment. Because assaulting a firefighter will result in a felony assault charge, you will not receive a DAT. Usually DATs are only issued for misdemeanors. Therefore, if you are arrested for assault on a firefighter you will end up in Central Booking where you will remain for several hours until your arraignment. During the arraignment you may find that the prosecutor decided to charge you with additional crimes, or raise the degree of the crime. At the arraignment you will also learn whether you will be held without bail, released on your own recognizance, or released after paying bail. Whether or not the judge will require bail and the amount of bail will be based on how much of a flight risk the court determines you to be.

Following your arraignment there will be a number or hearings and meetings. The prosecutor may offer you a deal that would require you to plead guilty to lesser charges. If you agree you will receive a sentence based on the lesser charge and you will avoid a trial. If no plea deal is agreed upon, then you will ultimately go to trial.

Defenses to an Assault Charge

Type of Injury. To be convicted of assault on a firefighter the injury cannot be slight. For a second degree assault charge based on assaulting a firefighter the injury must cause the victim substantial pain or physical impairment. For example, in People v. Rodriguez, 158 A.D.2d 376 (1990) the defendant was convicted of assault based on punching the victim in the leg. However, on appeal the court overturned the conviction, concluding that although the victim testified that the injure hurt a lot, there was no evidence to support that the injury was serious enough to sustain an assault conviction. For the charge of assault on a peace officer, police officer, fireman or emergency medical services professional the injury must be serious- presenting a substantial risk of death. If the injury is not as serious as the statute requires, then the prosecutor will have a difficult time convincing a judge or a jury that you should be convicted.

Lawful duty. In order to be convicted of an assault on a firefighter offense, you must have assaulted the firefighter while he or she was attempting to perform his or her lawful duties. Such duties may include not only putting out a fire, but also rescuing people and performing emergency medical treatment. If you do in fact assault a firefighter, but the firefighter was not in the process of performing his or her official duties, you have a valid defense against an assault on a firefighter charge. In other words, you cannot be charged with assaulting a firefighter simply because the victim is firefighter. However, you may still be found guilty of another assault offense such as assault in the third degree.

Consequences of an Assault on a Firefighter Conviction

If you are convicted of assault on a firefighter your sentence will include prison, payment of fines, fees, and restitution, and post-release supervision.

Prison

The actual length of your prison sentence will depend not only on the offense of which you are convicted but also on your prior criminal record. Based on your criminal record, you will be labeled as follows:

  • Prior convictions: 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.

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. Your sentence will be determinate, meaning that it will be a set period of years and not a range of years. Even if you have no prior convictions 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. Part of your sentence will also include a term of post-release supervision.

Assault on a peace officer, police officer, fireman or emergency medical services professional is a Class C felony. The maximum possible sentence is 15 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 3½ years in prison. Even if you have no prior convictions, then the minimum prison sentence you will receive is 3½ years. If your status is that of a non-violent predicate offender the court will sentence you to at least 5 years for an assault in the second degree conviction, while if you are a violent predicate offender you will be sentenced to at least 7 years in prison. If you are a persistent felony offender 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 from prison you will have to serve a term of post-release supervision.

Post-Release Supervision

Because both assault on a firefighter offenses are violent felonies, if you are convicted of either such offense part of your sentence will also include a term of post-release supervision of 1½ -5 years. N.Y. Pen. Law § 70.45. There will be several rules that you must follow while you are on post-release supervision. Such rules vary from person to person based on what the Department of Corrections determines is needed to ensure a smooth, crime-free transition from prison back into the community. Examples of rules that you must follow include:

  • You must not commit a crime
  • You must not hang out with other people who have criminal records
  • You must not go to places known for illegal activity
  • You must not use or possess illegal drugs or drug paraphernalia
  • You must consent to warrantless searches without probable cause
  • You cannot leave the State of New York without permission
  • You must not own, possess or purchase a gun
  • You must complete any ordered substance abuse treatment or medical treatment
  • You must stick to a curfew
  • You must have job or be enrolled in school

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 status is undisturbed, that you will be required to go back to jail for a period and then back on post-release supervision status, or that you may be required to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Fines, Fees and Restitution

If you are convicted of assaulting a firefighter the judge may order you to pay a fine and restitution to the victim. In addition, there are statutory fees that you must pay.

The fine will be up to $5,000. The fees will include a "mandatory surcharge" of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. Furthermore, you will be required to pay a monthly fee related to post-release supervision of $30 per month.

As for restitution, generally the maximum amount of restitution is $15,000, plus a 5% surcharge. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses.

If you do not pay a fine, fee or restitution, there will be legal consequences. However, if you cannot pay the judge may adjust the payment terms, lower the amount you must pay, or revoke the part of the sentence requiring you to pay.

Long-Term Consequences

Even after you serve your prison term, post-release supervision term and pay your fees, fines and restitution, there will be additional long-term consequences to being convicted of assault on a firefighter.

  • 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
  • Temporarily barred from voting

Being arrested for assaulting a firefighter, any other public safety or peace officer is very serious. If you are convicted you could face a long prison sentence, have to pay fines and have a criminal record. However, there may be defenses to a charge of assault on a firefighter that only an experienced practitioner will understand. Thus, if you have been arrested for assault in the second degree or assault on a peace officer, police officer, fireman or emergency medical services professional it is important to immediately contact someone who is familiar with the New York criminal court system. 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 on a firefighter, assault on a police officer, assault on a judge as well as other assault crimes, menacing, reckless endangerment, and stalking. 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:

CONTACT US FOR A FREE CONSULTATION
1-800-NY-NY-LAW (1-800-696-9529)