Queens Domestic Violence and Assault with a Knife

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

A domestic violence crime in New York involves physical violence or criminal threats between people in the following relationships: spouses or former spouses, people who are dating or at one time dated, people who are co-parents, or residents of the same household. Assault is one of the most common types of domestic violence. It is a criminal offense involving intentionally or recklessly causing physical harm to another person. While many different weapons may be used during an assault, when a knife is used the victim is more likely to suffer serious injuries or die. For this reason a knife is classified as a deadly weapon. The consequences of being convicted of assaulting someone with a deadly weapon such as a knife are particularly severe. You could end up spending years in prison and paying significant fines, fees, and restitution. Thus, if you have been charged with assaulting someone with a knife during a domestic dispute it is important that you immediately contact an experienced Queens Domestic Violence and Assault with a Knife Lawyer who understands the impact a conviction will have on your life and who will aggressively defend you until your case is resolved.

What is Assault with a Knife?

In the New York criminal code there is no one crime that is called "assault with a knife." If someone with whom you have a domestic or intimate relationship accuses you of using a knife in an assault, you will be charged with assault in the third degree, assault in the second degree or assault in the third degree. Each of these offenses addresses assaulting someone with a deadly weapon, and a knife is defined as a deadly weapon. In fact, that statute lists several specific types of knives that are considered deadly weapons including a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, box cutter and dagger.

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 knife. If you seriously injure another person with a knife, you will be arrested and charged with assault in the first degree. N.Y. Pen. Law § 120.10. Because it is such a serious, violent crime it is classified as a Class B felony. If you are convicted you will definitely go to prison for a long time.

Assault in the second degree. You will face a charge of assault in the second degree based on using a knife if the victim's injuries are not serious. N.Y. Pen. Law § 120.05. A serious injury is one that is life-threatening or that results in permanent disfigurement. N.Y. Pen. Law § 10.00(1). It is a Class D felony.

Assault in the third degree. Assault in the third degree is the least serious assault with a knife crime. If you use a knife 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 if I am Arrested for Assault with a Knife?

If you are suspected of having committed an assault with a knife 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 the judge will issue a warrant 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 knife. Any additional charges will greatly impact your sentencing if you are convicted.

Bail is determined at the arraignment. The prosecutor will give the court reasons why bail should be set and recommend an amount. You 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 with a knife, 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 Common Defenses to an Assault with a Knife Charge?

Extent of Injury. To sustain any domestic violence assault with a knife charge, at a minimum the victim must experience a "physical injury." As a physical injury is defined by New York Penal law as an impairment of physical condition or substantial pain, most knife wounds would likely qualify. At a minimum a knife wound 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 slight prick with the knife or a 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). While a knife could cause deep lacerations, permanent disfiguration or injury to vital organs, 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 or 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 type of defense is commonly referred to as self-defense and is often used in domestic violence assault cases. If the reason that you used a knife to injure the other person is because you were protecting yourself or a third party such as a child, then you may have a valid defense to an assault charge with a knife.

What are the Consequences of an Assault Conviction?

Even if you are convicted of assault in the third degree, the least serious assault with a knife charge, you will face serious, long-term consequences that may include prison, fines, fees, restitution, community supervision, and a life-time criminal record.

Prison. Whether you are incarcerated for an assault with a knife 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 knife 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, Fees, and Restitution. There will be financial consequences to being convicted of assault with a knife. 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.

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.

Another financial consequence of an assault with a knife conviction is that you may be ordered to pay restitution to the victim. The restitution is to pay for the victim's out-of-pocket expenses that resulted from the assault such as medical bills. 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 knife 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.

Failure to pay a fine, fee or restitution may result in your being charged with a misdemeanor and sent to prison for up to a year, your wages being garnished or a judgment being filed against you. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Post-Release Supervision. If convicted of a felony assault offense based on using a knife, because such an 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, called the conditions of 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. The general conditions are:

  • You must go directly to the area to which you have been released
  • Within 24 hours you must report to the Division of Parole
  • You must report to your Parole Officer regularly
  • You must submit to home visits and searches by your Parole Officer
  • You must submit to visits by your Parole Officer at your job
  • You cannot leave the State of New York without permission
  • You must let your Parole Officer know if you change residences or change jobs
  • You must respond promptly and truthfully to any inquiries from your Parole Officer
  • You must inform your Parole Officer if you are arrested or contacted by law enforcement
  • You must not associate with people who you know to have criminal records
  • You must not break the law or do anything to threaten the safety of others
  • You cannot own, possess, or purchase a shotgun, rifle, any other type of firearm, dangerous knife or any other type of deadly weapon
  • You must not use or possess drug paraphernalia or any controlled substance

If you violate any of the conditions of your post-release supervision, you will have to appear before a judge at a revocation hearing. The judge will decide whether to allow you to continue with the post-release supervision with the terms undisturbed, to change the terms of your post-release supervision, to send you back to jail for a period and then allow you to return to post-release supervision, or to require you to return to prison to serve time for violating your post-release supervision.

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.

Accusations of domestic violence are complex, often involving complicated emotional and family issues. In order to resolve such cases it is necessary to understand both the fine details of criminal law as well as the sensitive issues involved in family conflicts. Depending on the facts of your case there may be a number of ways to reach a favorable resolution. However, only an experienced practitioner will understand the appropriate legal strategies that may lead to the charges being dropped, reduced, you being acquitted after trial, or a reasonable sentence. If you have been arrested for domestic violence involving assault with a knife, contact Stephen Bilkis & Associates, PLLC. 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 knife, as well as clients charged with other crimes related to domestic violence such as menacing, reckless endangerment, stalking, sexual assault, 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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