Queens Domestic Violence and Assault with a Gun

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

In New York there is no specific criminal offense that is called "domestic violence." Domestic violence is any unwanted physical contact or threatening behavior between two people who are in an intimate relationship, including married and unmarried couples as well as people who share children. Assault is often involved in domestic violence. In some cases a deadly weapon such as a gun is used to commit the assault. Assault with a gun is considered one of the most serious assault charges because the use of a gun increases the likelihood of serious injury or death to another person. 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 harsh. You could end up spending years in prison and paying significant fines, fees, and restitution. Sadly, while there are many legitimate domestic violence assault cases, it is also not unheard of for accusations of domestic violence to be false, misleading or exaggerated. The mere accusation of any type of domestic abuse is serious and can affect both your personal and professional lives. If you are charged with assaulting your girlfriend, boyfriend, husband, wife, partner or roommate with a gun in a domestic violence incident, it is critical that you take immediate action and contact an experienced Queens Domestic Violence and Assault with a Gun Lawyer who will review the facts of your case and aggressively defend you until your case is resolved.

What is Assault with a Gun?

In New York Penal Law if you are accused of using a gun to assault another person, the charge that you will face will be a charge that relates to assault with a deadly weapon. The possible charges include assault in the third degree, assault in the second degree and assault in the third degree. Each of these offenses addresses assaulting someone with a deadly weapon, and a gun is defined as a deadly weapon. There are many types of weapons that are commonly called guns or firearms such as a pistol, revolver, rifle, shotgun, machine gun or an electronic stun gun.

Assault in the first degree. Assault in the first degree is the most serious charge that you will face is you assault someone with a gun. This charge involves seriously injuring another person with a gun. You will face this charge even if you accidentally seriously injure a third person. N.Y. Pen. Law § 120.10. Because it is such a serious, violent crime it is classified as a Class B felony, carrying a sentence that could put you in prison for decades. For example, in a domestic violence incident where a wife shot her husband with a rifle, defendant Brenda Rabideau was convicted of assault in the first degree. People v. Rabideau, 918 N.Y.S.2d 247 (2011).

Assault in the second degree. The only difference between assault in the first degree and assault in the second degree based on using a gun is that instead of seriously injuring the victim, you injure the victim. N.Y. Pen. Law § 120.05. In other words, the injury to victim is not life-threatening and does not result in a protracted impairment. N.Y. Pen. Law § 10.00(1). 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. If you use a gun to injure another person not intentionally, but with criminal negligence, the charge will be assault in the third degree. It is a Class A misdemeanor. 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)

What Happens During the Arrest and Arraignment?

If you are suspected of having committed an assault with a gun 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 first or second degree assault you will be held in Central Booking of up to 24 hours until your arraignment.

At your arraignment you will find out the crimes with which you are being charged. The prosecutor may decide to charge you with more crimes in addition to just assault with a gun such as criminal possession of a weapon.

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 and set the bail amount. The judge may order that you be released on your own recognizance (ROR). Or the judge may decide to remand you, meaning that you will be held without bail.

Are there Defenses to an Assault Charge?

There are numerous defenses to an assault charge. Whether or not any particular defense is available depends on the specific facts of your case.

Type of Extent of Injury. The prosecutor must show that the victim was physically injured. In the case of being shot with a gun, in the vast majority of cases the victim's injury will qualify as a physical injury as defined by New York law. However, to sustain a charge of assault in the first degree the prosecutor is required to show that the victim suffer a serious physical injury. While it may seem obvious that if a victim is shot the victim will suffer a physical injury, a gunshot injury does not always result in 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." In order for the injury to be considered serious it must be so severe that 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 first degree charge. This is what happened in the case of People v. Tran, 729 N.Y.S.2d 851 (2001). Defendant Ricky Tran's assault in the first degree conviction was overturned after Tran showed that even though he did shoot the victim, the victim's injury resulted in only a slight scar. The prosecutor had not shown that the victim suffered a life-threatening injury or that the victim suffered a permanent disfigurement.

Self-Defense. Under New York law you are permitted to physical force against another person to protect yourself from imminent harm. N.Y. Pen. Law § 35.15. In a domestic violence situation it is not unusual for one person to assault the other person in an attempt to protect him or herself or to protect another person such as a child, parent or sibling. However, typically a justification defense will not help you unless the other person initiated the violence and not you.

What is an Order of Protection?

If you are charged with assaulting someone you are in a domestic relationship with, a judge may issue an Order of Protection against you. The Order of Protection may be issued by a criminal court judge or from family court. In either case, the Order of Protection will be very specific as to what you can and cannot do. For example, it may require you to stay away from the victim's home, school, or place of business. This means that if you live with the victim, the order may exclusionary, requiring you to move. If you have children with the victim, you may be ordered to pay child support. If you violate an Order of Protection, you could face additional criminal charges. Based on the outcome of the assault with a gun charges against you, the Temporary Order of Protection may become a Permanent Order of Protection, meaning that it may remain in place for a number of years. However, if you do not believe that an Order of Protection is warranted, then there are ways to fight such an order to get it vacated.

What are the Consequences of an Assault Conviction?

Even if you are convicted of assault in the third degree, the least serious assault charge, you will face serious, long-term consequences.

Prison. Whether you are incarcerated for an assault with a gun conviction depends on the specific charge of which you are convicted, your criminal record, and the specific facts of your case. 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. In addition, if you have a criminal record that includes at least 1 prior felony conviction within the past 10 years you will receive a harsher sentence than if you had no prior convictions.

  • Assault in the third degree. It is a Class A misdemeanor. The maximum possible sentence is 1 year in jail.
  • Assault in the second degree. It is a Class D felony. The maximum possible sentence is 7 years in prison. However, because assault in the second degree is classified as a violent felony, even if you have no prior convictions the judge will sentence you to at least 2 years in state prison. I you have a prior non-violent felony conviction, the minimum sentence is 2 years in prison, while if you were previously convicted of a violent felony the minimum sentence that you will receive is 3 years in prison. If you are classified as a persistent felony offender because you have at least 2 prior felony convictions, the judge must apply different set of sentencing rules. The minimum prison sentence that you will face is 12-15 years, and you could be sentenced to life.
  • Assault in the first degree. It is a Class B felony. The maximum possible sentence is 25 years in prison. However, because assault in the second degree is also classified as a violent felony, even if you have no prior convictions the judge will sentence you to at least 5 years in state prison. I you have a prior non-violent felony conviction, the minimum sentence is 8 years in prison, while if you were previously convicted of a violent felony the minimum sentence that you will receive is 10 years in prison. If you are classified as a persistent felony offender because you have at least 2 prior felony convictions, the judge must apply different set of sentencing rules. You would be sentenced to life in prison.

Fines. Even if you are sentenced to prison, the court may also order you to pay a significant fine. For a conviction for assault in the third degree, a misdemeanor, the maximum fine is $10,000, while for a second or first degree assault the maximum fine is $15,000.

Fees. In addition to having to pay a fine you will be required to pay certain fees including a "mandatory surcharge" of $300 for a felony and $175 for a misdemeanor 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.

Restitution. Another financial consequence of an assault with a gun conviction is that you may be ordered to pay restitution to the victim. Generally, the maximum amount of restitution is $15,000 for a felony and $10,000 for a misdemeanor. However, the restitution may be considerably more as medical expenses for gunshot wounds can be significant and the court may require you to pay those expenses. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

Probation and Post-Release Supervision. If you are convicted of domestic violence and assault with a gun part of your sentence will include probation or post-release supervision of between 1.5-5 years. There will be several rules that you must follow while you are on probation or post-release supervision such as:

  • You must not commit a crime
  • You must not associate with people who have felony criminal records
  • You must not patronize unlawful or disreputable places
  • You must not used controlled substances
  • You must submit to drug testing
  • You must consent to warrantless searches
  • You must submit to home visits by your Probation or Parole Officer
  • You must regularly report to your Probation or Parole Officer
  • You cannot leave the State of New York without permission
  • You must not purchase, own, possess a gun
  • You must not consume alcohol
  • You must follow a curfew
  • You must have job or be enrolled in school

If you violate any of the terms of your probation or post-release supervision, you will have to appear before a judge at a revocation hearing. If after hearing evidence the judge concludes that you are in violation the judge could sent you to prison.

Long-Term Consequences. Even if you are convicted of only a misdemeanor assault with a gun charge and receive a sentence that includes little or no jail time, there will be additional consequences. You will have a criminal record that will make several aspects of your life more challenging such as getting a job. In addition, you will be barred from working in certain professions such as being a teacher, lawyer, or security guard. In addition, you will no longer to be able to own a gun in the future, serve in the military, or serve on juries. Some schools 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 felony conviction may cause you to lose custody of your children or restrict the visitation arrangement. If you are not a U.S. citizen, you may be subject to deportation.

What Should I do if I am Arrested for Assault with a Gun?

Being charged with a crime related to domestic violence can bring many different emotions such as fright, anger and betrayal. However, it is important to also remember that the charge of assaulting someone with a deadly weapon is very serious. If you are convicted in addition to being sent to prison many other aspects of your life may change forever. However, there may be defenses to a charge of assault with a gun 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 gun it is important to immediately contact someone who understands the New York criminal system and who also understands the intricacies of domestic violence cases. 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 domestic violence in the following locations:

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