Queens Domestic Violence and Assault

N.Y. Pen. Law §§ 120.00, 120.02, 120.05, 120.10 & 130.00-130.91

While some feel that assaulting a spouse, someone you are dating, a family member, or someone else with whom you have or had an intimate relationship is a private matter, New York law says otherwise. Assault is a criminal offense involving using violence against another person causing that person physical harm. The relationship to the victim is not relevant to the charge. There are several different types of assault charges based on the extent of the victim's injuries and how the assault was committed. The assault charge will be more serious if you used a deadly weapon or dangerous instrument such as a gun, knife, or car. If during the assault you seriously injured the victim, you will be charged with a more serious assault offense. There are also assault charges where the assault involved forcing the victim into a sexual act. The punishment for being convicted of a domestic violence related assault various based on the specific charge. However, there is a good possibility that you will end up in prison. If you have been charged with any type of assault related to an act of domestic violence it is critical that you speak with an experienced Queens Domestic Violence and Assault Lawyer who will work aggressively to help ensure the best possible outcome given the circumstances of your case.

What is Domestic Violence Assault?

Like most cases of assault, domestic violence related assault often starts as an argument. The verbal dispute then escalates and one person or both parties become physical. The physical assault may involve slapping, punching, or shoving. Or, it may involve using items such as bottle, chair, book, or bat to assault the other person. Domestic violent assaults even involve deadly weapons such as guns or knife. If you have sex with someone with whom you have a domestic or intimate relationship against that person's will, that is yet another form of assault.

Assault. Under New York Penal Law assault is a criminal offense that involves intentionally or recklessly causing physical injury to another person. There are 3 degrees of the general assault charge: 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.

Assault in the second degree is a Class D felony. If you seriously injure your spouse, girlfriend, boyfriend, or roommate and you intended to cause that person serious harm, then instead of facing a misdemeanor charge of assault in the third degree, you will be charged with assault in the second degree. N.Y. Pen. Law § 120.05. Under New York law a serious physical injury is an injury that creates a substantial risk of death, that causes death, or that causes serious disfigurement or impairment. N.Y. Pen. Law § 10.00(10). Another factor that could raise an assault to the level of assault in the second degree is if you used a deadly weapon or dangerous instrument. The statute defines a deadly weapon as a gun, switchblade knife, dagger, billy, blackjack, plastic knuckles or metal knuckles. N.Y. Pen. Law § 10.00(12). A dangerous instrument is defined as any object that could be used to cause serious physical injury. N.Y. Pen. Law § 10.00(13). A dangerous instrument can be practically anything when used as a means to hurt another person. Examples include a car, bat, stun gun, pocket knife, box cutter and even a boot. To face a second degree assault charge based on using a deadly weapon or dangerous instrument, it is not necessary that the victim suffer a serious physical injury, just an injury.

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. N.Y. Pen. Law § 120.10.

Sexual assault is a common type of domestic violence. While some believe that it is not possible to sexually assault a wife or girlfriend, it is indeed possible. Sexual assault is a general term to describe several different sex crimes such as rape, forcible touching, sexual abuse, criminal sexual act, and sexual misconduct. Each offense involves having some sort of sexual contact with another person without that person's consent. For example, if you have sexual intercourse with your wife, girlfriend or roommate without her consent, then you may face a sexual assault charge of rape in the third degree. N.Y. Pen. Law § 130.25. If you do so using physical force, you could face a charge or rape in the first degree. N.Y. Pen. Law § 130.35.

What Happens if I am Arrested for Assault?

If you are suspected of having committed an assault you will be arrested and taken into custody at the local police precinct. Next you will either be given a Desk Appearance Ticket (DAT) and released, or you will be sent to Central Booking to await arraignment. DATs are typically only given in cases where the charge is a misdemeanor. Since assault in the third degree is a misdemeanor, it is possible that the arresting officer will opt to issue you a DAT that states where and when you must appear for arraignment. If you do not show up, a warrant will be issued for your arrest. On the other hand, if you are charged with felony first or second degree assault you will be held in Central Booking of up to 24 hours until your arraignment.

The arraignment is the first time you appear before a judge. Bail is determined at the arraignment. The prosecutor will give the court reasons why bail should be set and recommend an amount. Your defense will argue for low bail or no bail. The judge will consider both arguments. The judge will also consider the report from the Criminal Justice Agency (CJA). While you were waiting to be arraigned, a representative from the CJA interviewed you to determine your ties to the community. Based on this information the judge will determine the level of flight risk you pose and whether or not bail should be ordered. The judge can choose to remand you, meaning that you will have to remain in jail while your case is being resolved. Or the judge can release you on your own recognizance (ROR), meaning that you will not be required to post bail to be released. However, if you are released it is imperative that you show up at court for every hearing and for each day of your trial. If you do not the judge may issue a warrant for your arrest.

At some point during the process you may reach a plea agreement with the prosecutor. You will likely agree to plead guilty to a charge that is less serious than the original charge. The prosecutor may offer you a deal in order to avoid going to trial. Or, the prosecutor may be unsure as to whether or not he or she will be able to win a conviction if the case goes to trial. Whatever the reason, if you accept a plea agreement, the prosecutor will be able to close the case and declare a victory. A plea deal may be attractive to you as you will not face the cost of an expensive trial and you do not risk a more severe sentence. However, the result will be that you will have been convicted of a crime and you will be sentenced.

What is an Order of Protection?

If you are charged with assault, at the beginning of your case the prosecutor may request that the judge issue an Order of Protection in favor of the victim to make sure that the victim is not harmed or threatened while the criminal case is being adjudicated. The Order of Protection may be a "stay away" order or a "refrain from" Order of Protection. If the Order of Protection is a stay away order, then you must not have any type of contact with that person. This means that you must

  • Not have any physical contact with the victim
  • Stay away from the person's home, school or job
  • Not call the person
  • Not email or fax that person
  • Not send that person letters
  • Not send the person messages through other people
  • Not send the person gifts or flowers

If there is a refrain from Order of Protection, then you are prohibited from doing specified acts such as harassing, intimidating, or threatening the victim. While a criminal court Order of Protection that is issued at the beginning of a criminal case is generally temporary, depending on the outcome of the case, a temporary Order of Protection may become final-- meaning that it will remain in effect for up to 8 years. It the court concludes that there is no basis for the Order of Protection, it will be dismissed.

However, if you violate an Order of Protection there will be serious consequences. For example, if you are out on bail and you violate the Order of Protection, your bail may be revoked and you may be sent to jail. If you are on probation, violating an Order of Protection will be a violation of the terms of your probation. You will likely be sent to prison.

What are the Consequences of an Assault Conviction?

If you are convicted of assault in the context of domestic violence there is a very good chance that your sentence will include incarceration. It will also likely include a fine, fees, restitution, and possibly post-release supervision or probation. Whether or not you are sent to jail depends largely on the seriousness of the crime of which you are convicted and your prior criminal record.

Prison
  • Class A misdemeanor. The maximum possible sentence is 1 year in jail. Assault in the third degree is a Class A misdemeanor. Certain sexual assault offenses are also misdemeanors such as sexual misconduct, forcible touching, and sexual abuse in the second degree.
  • Class E felony. The maximum possible sentence is 4 years in prison. Several sexual assault offenses are Class E felonies such as rape in the third degree, criminal sexual act in the third degree, and aggravated sexual abuse in the fourth degree.
  • Class D felony. The maximum possible sentence is 7 years in prison. The following assault offenses are Class D felonies: assault in the second degree, and reckless assault. Rape in the second degree, criminal sexual act in the second degree, aggravated sexual abuse in the third degree and sexual abuse in the first degree are also Class D felonies.
  • Class C felony. The maximum possible sentence is 15 years in prison. Aggravated sexual assault in the second degree is a Class C felony.
  • Class B felony. The maximum possible sentence is 25 years in prison. Assault in the first degree is a Class B felony as are rape in the first degree, criminal sexual act in the first degree, and aggravated sexual abuse in the first degree.
Probation and Post-Release Supervision

If you are convicted of assault your sentence may include probation. This is likely to be the case if the offense is a misdemeanor, or if the circumstances of your case do not require the judge to following minimum sentencing guidelines that require incarceration. The term of probation will be 3 years for a misdemeanor conviction or 5 years for a felony conviction. For sex offenses the probation terms are twice as long. If your sentence includes both prison and probation, you will serve the terms concurrently. This means that if your sentence is 4 years in prison and 5 years of probation, you will serve 4 years of probation while you are in prison and the remaining year once you are released.

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 must:

  • Avoid injurious or vicious habits
  • Refrain from frequenting unlawful or disreputable places
  • Refrain from consorting with disreputable persons
  • Have a job or be enrolled in school
  • Undergoing available medical or psychiatric treatment and remaining in a specified institution, when required for that purpose
  • Complete an alcohol or substance abuse program, if ordered by the court
  • Support your family
  • Pay restitution
  • Perform community service
  • Post bond or other security for the performance of any or all conditions imposed;
  • Install an ignition interlock device on any vehicle that you use
  • Refrain from consuming alcohol
  • Regularly report to your Probation Officer
  • Obtain permission before traveling or moving outside of New York
  • Notify your Probation Officer if you move or change employment
  • Submit to electronic monitoring

N.Y. Pen. Law § 65.10.

If convicted of a violent felony assault part of your sentence will include a term of post-release supervision of up to 5 years. However, unlike probation, post-release supervision is not served concurrently with a prison term or in lieu of prison, but after release from prison. Like probation, while you serve your term of post-release supervision there will be several rules that you must follow. If you fail to follow the rules you could be sent back to prison.

Financial consequences

In addition to being sent to prison, as part of your sentence the judge may order you to pay fines, fees, and restitution. For felony assault the fine would be up to $5,000, while for a misdemeanor offense the fine would be up to $1,000. Fees include a "mandatory surcharge" of $175-$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 be required to pay a monthly supervision fee of $30. As sex crime conviction will bring even more fees such as a fee related to sex offender registration.

Restitution is money that you may be ordered to pay that will go directly to the victim. The amount of restitution will be based on the losses suffered by the victim such as medical bills. Generally, the maximum amount of restitution is $10,000 for a misdemeanor and $15,000 for a felony. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

Failure to pay a fine, fee or restitution may result in you being charged with yet another crime that could mean a year in prison. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Long-Term Consequences

Even if you are convicted of only a misdemeanor assault in the third degree and receive a sentence that includes little or no jail time, there will be other consequences that are life-altering. You will have a criminal record that will impact many aspects of your life. For example, you will be barred from working in certain professions such as being a teacher, nurse, home healthcare worker or lawyer. In addition, you will no longer to be able to own a gun, serve in the military, or serve on juries. Some colleges may refuse admission or ban you from living on campus. You will also not be able to receive certain government benefits such as welfare or federally funded housing. Furthermore, a conviction of domestic violence related crime may affect your custody and visitation arrangement with your children particularly if the domestic violence occurred in the presence of your children, or if you were also charged with child endangerment. If you are not a U.S. citizen, under federal law you may be subject to deportation.

Defending am assault case that is based on domestic violence is complex because of the emotions involved in the relationship between the defendant and the victim. However, just like any criminal case, if you are convicted of a domestic violence crime you will face serious consequences that may include prison, fines, restitution, and a permanent criminal record. If you have been charged with any type of assault offense related to an act of domestic violence it is important that you immediately seek experienced legal guidance. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with domestic violence offenses 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 domestic violence in the following locations:

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