Queens Gang Assault in the First Degree

N.Y. Pen. Law § 120.07

If you intentionally or recklessly injure another person, you may face an assault charge. For example, if you get into an argument with someone and decide to punch that person in the face, you would have assaulted that person. Similarly, if you stab another person with a knife, shoot someone with a gun, or hit someone over the head with a bottle, be prepared to be arrested for assault. If you assault someone with the aid of at least 2 other people the type of assault that you would have committed is called gang assault. The term "gang" does not refer to a street gang. It simply refers to a group of at least 3 people acting in concert to assault someone. There are 2 types of gang assault: gang assault in the first degree and gang assault in the second degree. While both charges are quite serious, gang assault in the first degree carries a punishment that is more severe. If you have been charged with gang assault in the first degree you should speak with an experienced Queens Gang Assault in the First Degree Lawyer who will listen to the facts of your case and mount a vigorous defense on your behalf.

Definition of Gang Assault in the First Degree

If you are accused of gang assault, there are 2 possible charges: gang assault in the second degree and gang assault in the first degree. Gang assault in the first degree is the more serious offense. You will face this charge if you:

  • Assault another person with the help of at least 2 other people
  • Your intent must have been to cause serious physical injury
  • The victim must have actually suffered serious physical injury

It is a Class B felony. A serious physical injury is one that is so severe that it creates a substantial risk of death, causes death, causes protracted disfigurement or impairment of health, or causes loss of a bodily organ. N.Y. Pen. Law § 10.00. The difference between a second degree gang assault charge and a first degree gang assault charge is the intent. For a second degree charge your intent would have been to cause physical injury while for a first degree charge you intent would have been to cause serious physical injury.

The court will determine whether or not you intended to cause the victim serious injury by looking at your actions. For example, in People v. Meachem, 922 N.Y.S.2d 721 (201) the court found that the natural and probable consequences of repeatedly striking a defenseless victim is that the victim would sustain a serious physical injury. Thus, it was reasonable to conclude that that was the defendant's intention.

Being Arrested for Gang Assault in the First Degree

If you are suspected of gang assault in the first degree, the arresting officer will first take you to the local precinct for initial processing. Then you will be transferred to Central Booking where you will remain until your arraignment. At the arraignment you will be given a Complaint that will list the charges against you. You will be charged with gang assault in the first degree and perhaps additional crimes. The prosecutor will make a recommendation to the judge about bail. The judge will decide if bail is required, if you should be released on your own recognizance, or held without bail. Lastly, you will learn the next time you will be required to appear in court. Because gang assault in the first degree is a felony, your case will be heard by the Grand Jury.

Before going to trial you may be able to reach an agreement with the prosecutor that allows you to plead guilty to a less serious crime that will result in you being given a lighter sentence than if you are convicted of gang assault in the first degree at trial. You have the option of accepting the deal or standing trial. If you agree to a plea agreement, the result will be that you have been convicted of a crime and you will have a criminal record. However, your sentence will be less severe than it otherwise would be.

Defense to a Gang Assault Charge

The lack of seriousness of the victim's injury may provide a defense to a charge of gang assault in the first degree. A gang assault in the first degree charge is based on the defendant intending to cause serious physical injury and the victim suffering serious physical injury. If either of these factors is absent, you have a valid defense against the charge. The court will look closely at medical evidence to determine whether or not the victim suffered from a serious injury. Factors which courts may consider include:

  • Whether the victim lost consciousness
  • Whether the victim was able to hold
  • Whether the victim suffered a permanent scar
  • Whether the victim experienced a great deal of pain
  • Whether any vital organs were damaged
  • Whether the victim has to undergo surgery

For example, in People v. Mazariego, 986 N.Y.S.2d 235 (2014) the court declined to uphold a gang assault in the first degree charge where after being stabbed by the defendant, the victim needed no stitches, remained conscious, was able to hold a conversation, and was not disoriented.

Arrest and Arraignment

If you are arrested for gang assault in the first degree, first you will be taken to the local police precinct. Within 24 hours of your arrest you will be arraigned. At your arraignment hearing 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. You will also learn whether or not bail will be required.

Because gang assault in the first degree is a felony New York law requires that the prosecutor present your case to the Grand Jury. The Grand Jury will decide whether you should be indicted, meaning charged with a crime. If you are indicted, you may be able to negotiate a plea bargain with the prosecutor. There are rules regarding plea bargains and indicted felony cases. Since grand assault in the first degree is a Class B drug felony, the best "deal" that the prosecutor can offer is for you to plead guilty to a Class D felony. If you are not able to reach a plea agreement with the prosecutor then your case will go to trial.

Consequences of a Gang Assault Conviction

If you are convicted of gang assault in the first degree your sentence will include prison, payment of fines and fees, and post-release supervision.

Prison

Because gang assault in the first degree is a Class B felony, the maximum possible sentence is 25 years in prison. N.Y. Pen. Law § 70.02. Because it is also classified as a violent felony, the judge is required to impose a minimum sentence of 5 years. Your sentence will be determinate, meaning that it will be a set period of years, and will not involve a range. The length of your prison sentence will depend on factors such as your prior criminal record. Even if you have no prior convictions then the minimum sentence you will receive is 5 years in prison. The court will not have the option of sentencing you to no prison time.

If your status is that of a non-violent predicate offender meaning that you have a prior non-violent felony conviction within the last 10 years, then the court will sentence you to at least 8 years for an assault in the first degree conviction. For example, in People v. Cordato, 924 N.Y.S.2d 649 (2011) defendant Kari Cordato was convicted of gang assault in the first degree. Because she had a prior non-violent felony conviction Cordato was sentenced to 15 years in prison.

If you are a violent predicate offender, you will be sentenced to at least 10 years in prison. If you are a persistent felony offender, then the minimum sentence you will receive is 20-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08.

Post-Release Supervision

If convicted of gang assault in the first degree part of your sentence will also include a term of post-release supervision of up to 5 years. N.Y. Pen. Law § 70.45. There will be several rules that you must follow while you are on post-release supervision. The purpose of the rules are to ensure that you have a smooth transition back in to the community and to minimize the likelihood that you re-offend. Such rules will require you to not commit any more crimes, refrain from associating with others with criminal records, patronizing unlawful places, possessing controlled substances, or possessing a gun. You must agree to warrantless searches, drug testing and home visits by your Parole Officer. You also will be required to stick to a curfew and hold a job or go to school. If you violate any of the terms of your post-release supervision, your post-release supervision may be revoked resulting you having to go back to prison.

Fines, Fees and Restitution

As with being convicted of any type of violent crime being convicted of gang assault in the first degree will have significant financial consequences as you will be required to pay a fine, fees and restitution. The judge may order you to pay a fine of up to $5,000. Furthermore, you will be required to pay a "mandatory surcharge" of $300, a victim assistance fee of $25. N.Y. Pen. Law § 60.35, as well as a parole supervision fees of $30 per month.

Restitution is paid to the victim to cover out-of-pocket expenses that result from a crime. Generally, the maximum amount of restitution is $15,000 for a felony conviction, plus a 5% surcharge. N.Y. Pen. Law § 60.27. However, the court has the discretion to order that you pay a higher amount, provided that the excess amount is limited to returning the victim's property or paying for the victim's medical expenses. N.Y. Pen. Law § 60.27(5)(b). For example, in the case of People v. Hodges, 888 N.Y.S.2d 224 (2009), the court ordered the defendant to pay restitution in the amount of $705,000.

There are legal consequences to not paying court ordered fees, fines and restitution. However, if you do not have the financial ability to pay the judge may adjust the payment terms, lower the amount you must pay, or revoke the part of the sentencing requiring you to pay.

Order of Protection

As part of the criminal process, the prosecutor may request and the judge may grant a Temporary Order of Protection against you in favor of the victim. An Order of Protection is designed to keep the victim safe by limiting your actions. The victim, also referred to as the complaining witness, will have told the prosecutor his or her side of story, giving details as to why a Order of Protection is necessary. Based on this information, the prosecutor will request that the judge issue a Temporary Order of Protection with specific requirements. For example, the Order of Protection may be a "full" order meaning that you will be required to stay away from the victim, the victim's home, the victim's place of employment, and the victim's children. If you share a home with the victim, the order may also require you to move. A limited order will require you to refrain from harassing, threatening or abusing the victim. If warranted, the order may require you to attend a substance abuse program.

Depending on the outcome of the assault charges against you that form the basis for the Order of Protection, a Permanent Order of Protection may be issued that may last from 2-8 years.

If you violate an Order of Protection, you could face additional criminal charges that could result in you going to prison. 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 dismissed.

Long-Term Consequences

Regardless of what your sentence is, if you are convicted of gang assault in the first degree you will have to live with having a criminal record for the rest of your life which will negatively impact several aspects of your life. With a simple background check a potential employer will quickly learn that you were convicted of a violent crime. As a result you may lose many job opportunities. In fact, a criminal record is likely to prevent you pursuing a career in the military, childcare, education, security, nursing, and home healthcare. In addition, there are schools that will deny you admission if you have a criminal record or bar you from living on campus.

A charge of gang assault in the first degree is very serious. The consequences of a conviction are life-altering. You will end up in prison away from your loved one for years. You will also be dealt a devastating financial blow as you will be ordered to pay thousands of dollars in fees, fines and restitution. And, you will end up with a permanent criminal record. Thus, if you have been arrested for gang assault in the first degree it is important to immediately contact someone who 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 gang assault 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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