Queens Assault with a Gun

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

Under New York law, you will have committed the crime of assault if you cause physical injury to another person either intentionally, recklessly, or with criminal negligence. It is possible to assault someone in many different ways such as by punching, kicking or shoving. However, if you use a gun to assault someone, there is a greater chance that the victim will suffer a serious physical injury than if you commit the assault in some other way. Whether you are charged with misdemeanor assault in the third degree or felony assault in the first degree depends largely on the extent of the injuries the victim suffers. Because assault with a gun usually leaves the victim with painful and permanent physical injuries the consequences of an assault with a gun conviction are likely to be harsh. You could end up spending years in prison and having to deal with significant financial consequences. Thus, if you have been charged with assaulting someone with a gun it is important that you immediately contact an experienced Queens Assault with a Gun Lawyer who will review the facts of your case and aggressively defend you until your case is resolved.

Assault with a gun charges

If you use a gun to assault someone, you will be charged with assault. Whether the charge is a misdemeanor or a felony depends largely on how seriously your victim is injured.

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 or a third person with a deadly weapon such as a gun. 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 People v. Forde, 080614 NYAPP2, 2014-05650 (August 6, 2014) defendant Andre Forde was convicted of assault in the first degree based on shooting a gun at an individual on a basketball court, hitting 3 other people. Although his intent was not to injure those 3 people, he still faced the assault in the first degree charge because his reckless conduct resulted in the serious injuries of 3rd people.

Assault in the second degree. Assault in the second degree with a gun is similar to assault in the first degree with a gun. The difference is that with second degree assault you intend to injure another person, while with first degree assault your intent is to seriously injure another person. 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 gun crime. It is a Class A misdemeanor. You will face this crime if with criminal negligence you cause physical injury to another using a gun. N.Y. Pen. Law § 120.00. Criminal negligence is defined as engaging in conduct that grossly deviates from the standard of care that a reasonable person would use in that situation. N.Y. Pen. Law § 15.05(4)

Arrest and Arraignment

If you are arrested for suspicion of assaulting someone with a gun the arresting officer will take you to the local police precinct where you will be fingerprinted and photographed. Within 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 prosecutor may decide to raise or lower the charges, or to add additional charges. Charges that sometimes accompany assault with a gun charges include criminal possession of a weapon and robbery.

If you are charged with a felony the prosecutor will present your case to the Grand Jury. The Grand Jury will decide whether you should be indicted, meaning charged with a crime, or released. If you are indicted, you may be able to negotiate a plea bargain with the prosecutor. If you are not able to reach a plea agreement with the prosecutor, then your case will go to trial.

Defenses to an Assault With a Gun Charge

Extent of Injury. To sustain any assault with a gun charge, at a minimum the victim must experience a "physical injury." As a physical injury is defined as an impairment of physical condition or substantial pain, any gunshot wound would likely qualify. This would be enough for an assault in the third degree. Other assault crimes such as assault in the first or 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 more than a relatively minor "flesh wound." The injury must be so severe that the there was a good possibility that the victim could have died or suffered 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. Thus, if 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 gun conviction depends on 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 gun, you will be sentenced to prison. The actual length of your prison sentence will depend on factors such as your prior criminal record.

  • Prior convictions: Prior convictions include felony convictions within the last 10 years.
  • Non-Violent Predicate: A non-violent felony conviction within the last 10 years.
  • Violent Predicate: A violent felony conviction within the last 10 years.
  • Persistent Felony Offender: At least 2 prior felony convictions.

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.
  • No prior convictions: Minimum 2 years in prison
  • Non-violent predicate: Minimum 3 years in prison
  • Violent predicate: Minimum 5 years in prison
  • Persistent felony offender: Minimum 12-15 years in prison; maximum life
  • Class B felony. The maximum possible sentence is 25 years in prison and a fine of up to $5,000.
    • No prior convictions: Minimum 5 years in prison
    • Non-violent predicate: Minimum 8 years in prison
    • Violent predicate: Minimum 10 years in prison
    • Persistent felony offender: Minimum 20-15 years in prison; maximum life
    Post-Release Supervision

    If convicted of a felony assault offense based on using a gun, because such a felony offense is a also a violent felony 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, there may be specific rules applied to your post-release supervision to help ensure a smooth, crime-free transition from prison back into the community. Examples of the rules that you will be required to follow include that you must not associate with disreputable people, you must not used controlled substances, you must submit to home visits by your Parole Officer, and that you must get permission before leaving the State of New York. If you violate any of the terms of your post-release supervision you may be ordered to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

    Fines, Fees and Restitution

    Your sentence may also include the payment of a fine of up to $5,000. If you are convicted of a crime in New York, 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. You may also be required to pay a probation supervision fee of $30 per week. As part of your sentence you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000.

    There are serious 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. Should the court rule that you have indeed violated your probation you probation could be revoked and you could be sent to prison.

    Order of Protection

    If you are charged with assaulting someone with a gun the prosecutor will probably request that the 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. 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.

    Additional criminal charges

    If you are arrested for shooting someone, assault with a gun will likely not be the only criminal charge you face. Depending on the facts of your case, you may also be charged with criminal possession of a weapon, burglary, robbery, sexual assault, manslaughter, or homicide. Any additional charge could result in an addition conviction. You will receive an additional sentence based on the additional conviction.

    Long-Term 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 with a gun.

    • 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

    It is not easy to navigate the New York criminal justice system. From the time that you are arrested for assault with a gun until your case is resolved, there are many complicated steps that will affect the final outcome of your case. Thus, if you have been arrested for assault with a gun it is important to immediately contact someone who has experience representing clients in 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 gun, as well as other assault crimes, 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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