Queens Assault with a Deadly Weapon

N.Y. Pen. Law §§ 120.00, 120.05, 120.10, 120.11, 120.12

Under New York Penal Law assault is defined as intentionally, recklessly or with criminal negligence causing physical injury to another person. While you can assault someone by simply punching, pushing or kicking that person, you can also do so by using a deadly weapon. Examples of deadly weapons include a gun or a knife. If you assault someone using a deadly weapon, the chances of the victim suffering serious physical injuries increases considerably. The seriousness of the injury to the victim will have a bearing on the assault charge you face and your punishment. In fact, if your victim suffers a serious injury such as one that leaves the victim permanently disfigured, you will likely end up spending years in prison and paying significant fines, fees, and restitution. Thus, if you have been charged with assaulting someone using a deadly weapon it is important that you immediately contact an experienced Queens Assault with a Deadly Weapon Lawyer who will review the facts of your case and aggressively defend you until your case is resolved.

Assault with a deadly weapon charges

An assault with a deadly weapon charge can be any one of a number of different types of assault charges including assault in the first degree, assault in the second degree, assault in the third degree, and reckless endangerment in the first degree. In order for any assault to be considered assault with a deadly weapon, a deadly weapon must be used to carry out the assault. New York criminal law defines a deadly weapon as a weapon that is readily able to cause death or a serious physical injury. N.Y. Pen. Law § 10.00(12). The criminal statute gives several examples of deadly weapons: a firearm, a knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles.

Assault in the first degree. You will face a change of assault in the first degree if with intent to cause serious physical injury you seriously injure another person with a deadly weapon. Or, with indifference to human life you engage in reckless conduct that results in the death or injury of another person. N.Y. Pen. Law § 120.10. As it is one of the most serious assault offenses, assault in the first degree is a Class B felony. For example, in one case the defendant used some sort of blade to seriously injury the victim in the face. The defendant was convicted of assault in the first degree. People v. Johnson, 967 N.Y.S.2d 217 (2013)

Assault in the second degree. An assault with a deadly weapon will be raised to second degree assault if you seriously injure the victim. N.Y. Pen. Law §§ 120.05 and 120.10. Assault in the second degree is a Class D felony.

Assault in the third degree. Assault in the third degree is the least serious assault with a deadly weapon crime. It is a Class A misdemeanor. You will face this crime if with criminal negligence you cause physical injury to another using a deadly weapon. N.Y. Pen. Law § 120.00

Reckless endangerment in the first degree. You will face a charge of reckless endangerment if with depraved indifference to human life, you engage in conduct which creates a grave risk of death to another. It is a Class D felony. N.Y. Pen. Law § 120.25. While the statute does not define "grave indifference to human life" New York courts have interpreted it. In People v. Suarez, 811 N.Y.S.2d 267 (2005), the court defined it to mean an "utter disregard for the value of human life" and "a willingness to act not because one intends to harm, but because one simply doesn't care whether grievous harm results or not.

Arrest and Arraignment

Being charged with a crime in New York can be scary and overwhelming. If the police suspect that you have committed an assault in the first, second or third degree based on using a deadly weapon you will be arrested and taken to the local police precinct. At the local precinct your personal information will be taken and you will be fingerprinted. Then you will be taken to Central Booking where you will remain until your arraignment. 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 assistant district attorney assigned to your case may decide to raise or lower the charge, or to add additional charges. At your arraignment you will also learn whether or not bail will be required.

At some point your case may be resolved through plea-bargaining. You and the prosecutor may arrive at a mutually satisfactory compromise that would require you to plead guilty to a lesser crime that would result in a lighter sentence than if you were found guilty of the original charges after a trial. Any agreement that you come to with the prosecutor is subject to the approval of the judge.

Defenses to an Assault Charge

Extent of Injury. To sustain any assault charge, at a minimum the victim must experience a "physical injury." Physical injury is defined as an impairment of physical condition or substantial pain. This means that the injury to the victim must be more than minor. If the victim experiences some discomfort and brief bruising that does not leave a scar or require hospital treatment, the prosecutor will have a difficult time proving the crime of assault. Other assault crimes such as assault in the second degree require that the victim sustain a serious physical injury. This means that the prosecutor's evidence must clearly show that the victim suffered injuries that were so severe that the there was a good possibility that the victim might die or suffer an extended physical impairment. N.Y. Pen. Law § 10.00(10). If you can show that the victim's injuries were actually not that severe, then you may have a valid defense to assault in the second degree charges.

Self-Defense. New York has a "justification" statute that allows you to use physical force against another person to protect yourself from imminent harm. N.Y. Pen. Law § 35.15. This means that if, for example, the reason that you injured the other person is because you were protecting yourself from that person, then you may have a valid defense to an assault charge. However, to use the justification defense the other person had to have initiated the violence and not you. In addition, you cannot use more force than is reasonably necessary to protect yourself.

Consequences of an Assault Conviction

Whether you go to jail or prison for an assault with a deadly weapon conviction depends the specific charge of which you are convicted. A conviction for misdemeanor assault in the third degree will result in a far less severe sentence than a conviction for felony assault in the first degree. In most cases for a conviction of assault with a deadly weapon, you are likely to be sentenced to prison. The actual length of your prison sentence will depend on factors such as your prior criminal record.

In addition, there will be financial consequences in the form of fines, fees, and restitution.

  • Class A misdemeanor. The maximum possible sentence is 1 year in jail and a fine of up to $1,000.
  • Class D felony. The maximum possible sentence is 7 years in prison and a fine of up to $5,000. If this is your first offense, then the minimum sentence that you will face is 2 years. If you have a prior non-violent conviction, the minimum sentence will be 3 years, while if you have a prior violent conviction the minimum sentence will be 5 years. If you have 2 prior felonies then you will service at least 12-15 years in prison.
  • Class B felony. The maximum possible sentence is 25 years in prison and a fine of up to $5,000. If this is your first offense, then the minimum sentence that you will face is 5 years. If you have a prior non-violent conviction, the minimum sentence will be 8 years, while if you have a prior violent conviction the minimum sentence will be 10 years. If you have 2 prior felonies then you will service at least 20-25 years in prison.
Post-Release Supervision

If convicted of a felony assault with a deadly weapon offense, part of your sentence will include a term of post-release supervision of 1.5-3 years for a Class D felony and 2.5-5 years for a Class B felony. N.Y. Pen. Law § 70.45(2)(e). There will be several rules that you must follow while you are on post-release supervision. While certain rules will apply to all on post-release supervision, Department of Corrections may require specific rules to your post-release supervision that it deems necessary to ensure a smooth, crime-free transition from prison back into the community. Such rules may include that:

  • • You must not commit a crime
  • • You must not associate with other people who you know have criminal records
  • • You must not patronize unlawful or disreputable places
  • • You must not possess a controlled substance or drug paraphernalia
  • • You must submit to drug testing
  • • You must consent to warrantless searches
  • • You must submit to home visits by your Parole Officer
  • • You must regularly report to your Parole Officer
  • • You cannot leave the State of New York without permission
  • • You must now own, possess or purchase a gun
  • • You must refrain from consuming alcohol
  • • 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 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.

Additional Financial Consequences

In addition to having to pay a fine of up to $1,000 for a misdemeanor assault with a deadly weapon conviction or up to $5,000 for a felony conviction, you will be required to pay certain fees including a "mandatory surcharge" of up to $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay parole supervision fees of $30 per month.

Another financial consequence of an assault in the second degree conviction is that you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses. Furthermore, you will also have to pay a fee to the company whose job is to collect the restitution from you.

Failure to pay and ordered fine, fee or restitution, may result in your being charged with criminal contempt, your wages being garnished or a judgment being filed against you.

Order of Protection

If you are charged with assault with a deadly weapon the prosecutor will probably request that the criminal court 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. For example in People v. Talbot, 981 N.Y.S.2d 152 (2014), the defendant agreed to a plea bargain on criminal charges related to a domestic violence incident against his wife. An Order of Protection was issued requiring that Talbot stay away from his wife. As part of a plea agreement Talbot's sentence was to be 1 1/3-4 years in prison, as long as he did not commit any additional crimes. Talbot was arrested for violating the Order of Protection. As a result the judge threw out the plea agreement and sentenced Talbot to 2-6 years in prison.

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.

Criminal Record

Once you serve your jail, prison or probation sentence, there will be an additional consequence that may affect the rest of your life. You will have a criminal record that includes a serious felony. Nowadays, most employers will run a criminal background check before hiring. If you have a felony conviction for assault with a gun or a knife the employer may conclude that it would be too risky to hire you. In fact, there are some jobs that you cannot hold if you have a felony record, such as teaching. Furthermore, even employers who are willing to hire those criminal records may be hesitant to hire someone with a history of violence.

If you are accused of assaulting someone with a deadly weapon, you face serious consequences such as prison, fines, fees, restitution, and a permanent criminal record. However, just because you are accused of assault with a deadly weapon does not mean that you should be convicted. There may be defenses to the assault charge that only an experienced practitioner will understand and be able to apply to your case. Thus, if you have been arrested for assault with a deadly weapon, it is important to immediately contact someone understands the New York criminal 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 with a deadly weapon, as well as other assault crimes. 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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