Queens Assault on a Police Officer

N.Y. Pen. Law §§ 120.05, 120.08, 120.11

It is not wise to assault a police officer. While any type of assault is a serious crime, law enforcement considers assaulting a police officer as a particularly egregious offense and will aggressively seek to make sure that you receive a harsh punishment for such an assault. You will be charged with a violent felony, meaning that even if it is your first offense you will go to prison for a minimum of 2 years. A sentence of only probation will not be an option. While the prosecutor may be eager to charge and convict you if you are accused of assaulting a police officer, there may be defenses to a charge of assaulting a police officer. Thus, if you have been charged with assaulting a police officer it is important that you immediately contact an experienced Queens Assault on a Police Officer Lawyer who will carefully review the facts of your case, explain to you your legal options, and aggressively defend you against the charges.

Definition of Assault on a Police Officer

There are three different felony assault offenses related to injuring a police officer: assault in the second degree, assault on a police officer, and aggravated assault on a police officer.

  1. Assault in the second degree. Assault in the second degree is the least serious assault on a police officer offense. However, it is still a felony. You will face this charge if you assault a police officer in order to prevent that officer from performing his or her duties and cause the officer 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 police officer. You will have committed this crime if with intent to prevent a police officer from performing his or her lawful duty you cause that police officer serious physical injury. N.Y. Pen. Law § 120.08. 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). Assault on a police officer is a Class C felony. For example, in People v. Hurdle, 965 N.Y.S.2d 626 (2013), defendant Walter Hurdle was convicted of assault on a police officer based on having intentionally hit a police officer with an SUV, causing the police officer to suffer severe injuries. However, on appeal the conviction was overturned because when the police stopped Hurdle they did not do so for a lawful reason. The requirement that the police officer must have been in the process of performing his lawful duty was not met.

  3. Aggravated assault upon a police officer or a peace officer. You would have committed this offense if you intentionally seriously injure a police officer who was attempting to perform his official duties. You must have used a deadly weapon or dangerous instrument to commit the assault. N.Y. Pen. Law § 120.11. It is a Class B felony. 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). However, there are many other things that may be considered a dangerous instrument. In People v. Plunkett, 907 N.Y.S.2d 919 (2010) the defendant was convicted of aggravated assault upon a police officer based on being HIV positive and biting a police officer who was attempting to arrest him.

Being Arrested for Assaulting a Police Officer

If you are accused of assaulting a police officer you will be arrested and will have to go through the New York criminal process. It can be long, complicated and unpleasant. You will first be processed at the local police precinct. You will then be transferred to Central Booking where you will await your arraignment. While you are at Central Booking the prosecutor will review the facts of your case, including the evidence and your criminal background. Based on what the prosecutor learns the prosecutor may choose to charge you with additional crimes, or raise a charge of assault on a police officer, for example, to aggravated assault upon a police officer.

There may be several additional hearings and meetings with the prosecutor before your case finally goes to trial. It is possible to resolve your case without having a trial. You may be able to negotiate an agreement with the prosecutor that would require you to plead guilty to a lesser crime and avoid a trial. If you agree you would avoid the possibility of being convicted of the original charges and being given a relatively harsh sentence. You would instead face a comparatively lighter sentence. However, if you do agree to plead guilty to a lesser charge you will definitely end up with a conviction and a criminal record without the possibility of being acquitted of the charges.

Defenses to an Assault Charge

Type of Injury. To be convicted of assault on a police officer the injury cannot be slight. For a second degree assault charge based on assaulting a police officer the injury must cause the victim substantial pain or physical impairment. For assault on a police officer or aggravated assault upon a police officer the injury must be serious- presenting a substantial risk of death. If the injury is not as serious as the statute requires then you have a valid defense to an assault on a police officer charge.

Lawful duty. In order to be convicted of an assault of a police officer offense, you must have assaulted the officer while that officer was attempting to perform his or her lawful duties. For example, in People v. Hurdle, the defendant was ultimately acquitted of the charge of assault on a police officer because despite the fact that the defendant did assault the police officer. The police officer had not stopped and questioned the defendant based on lawful police procedure. However, even if the facts do not support a conviction of assault on a police officer, you may still be found guilty of another assault offense.

Punishment

If you are convicted of assault on a police officer 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. If you have been convicted of a non-violent felony within the prior 10 years, you will be considered a non-violent predicate offender. If you have been convicted of a violent crime within the prior 10 years, you will be considered a violent felony predicate offender. If you have been convicted of at least 2 prior felony offenses, you will be classified as a persistent felony offender.

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 police officer 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 3 1/2 years in prison. Even if you have no prior convictions, then the minimum prison sentence you will receive is 3 1/2 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.

Aggravated assault upon a police officer is a Class B felony. The maximum possible sentence is 25 years in prison. N.Y. Pen. Law § 70.02. Because aggravated assault upon a police officer is classified as a violent felony, the judge is required to impose a minimum sentence of 5 years. Even if you have no prior convictions then the minimum sentence you will receive is 5 years in prison. If your status is that of a non-violent predicate offender, then the court will sentence you to at least 8 years, while if you are a violent predicate offender, you will be sentenced to at least 10 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. If you are released you will have to serve a term of post-release supervision.

Post-Release Supervision

Because all assault on a police officer offenses are violent felonies, if you are convicted of any such offense part of your sentence will also include a term of post-release supervision of 1.5-5 years. N.Y. Pen. Law § 70.45. This means that after you are released from prison your term of post-release supervision will begin. There will be several rules that you must follow while you are on post-release supervision. Such rules are in place to help ensure a smooth, crime-free transition from prison back into the community. Common rules are that you will not be permitted to associate with others who have criminal records, go to unlawful places, or use controlled substances. You will be required to have a job or go to school, stick to a curfew, and report to you parole officer regularly. You will have to let you parole officer know if you change address and get permission to leave the state.

It is critical that you follow all of the rules. If you do not you could be sent back to prison.

Fines, Fees and Restitution

Fines. Being convicted of assaulting a police officer also can have substantial financial consequences as you will likely be required to pay a fine, fees and restitution. For a felony assault on a police officer conviction in addition to being sentenced to prison you may also be required to pay a fine of up to $5,000; for a misdemeanor, the fine is up to $1,000.

Fees. Furthermore, you will be required to pay certain fees including a fee that is called a "mandatory surcharge" of $175-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If part of your sentence includes community supervision such as post-release supervision, you will be required to pay a monthly fee of $30 per month.

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 and $10,000 for a misdemeanor, 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 returning the victim's property or 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.

There are legal consequences to not meeting your financial obligations are serious. Keep in mind that paying a fine or restitution is part of your sentence. Failing to pay is not the same as failing to pay another type of bill. 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.

Other criminal charges

If you are accused of assaulting a police officer there is a possibility that you may face additional criminal charges such as criminal possession of a weapon. 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

Whether you are convicted of a misdemeanor or felony assault of a police officer you should take note that an additional consequence of a conviction is that you will have a criminal record. A criminal record will make it challenging to find a job. If a position requires licensing by the federal or state government, you will probably be barred from that type of position. For example, New York state or the federal government issue licenses for teachers, attorneys, doctors, taxi drivers, and security guards. In addition, with a criminal record you may not be eligible for certain government benefits such as federally funded housing.

Assault on the police officer is one of the most serious charges you can face as law enforcement takes personal offense to a law enforcement officer being attacked and injured. If you are convicted you will be sent to prison for multiple years, have to pay fines and have a criminal record. However, there may be defenses to a charge of assault on a police officer that only an experienced practitioner will understand. Thus, if you have been arrested for assault in the second degree, assault on a police officer, or aggravated assault upon a police officer 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 police officer as well as other crimes such as robbery, 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:

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