Queens Reckless Assault of a Child

N.Y. Pen. Law § 120.02

The most shocking crimes that you can be charged with are crimes where children are the victims. Children are generally defenseless to an attack by an adult. The injuries that a child can suffer as a result of an assault can be much more severe than if the victim was a child. Such injuries can cause permanent damage, leaving the child disabled for life. While there are a number of assault charges that address child victims, reckless assault of a child specifically addresses assaults against children that leave the victims with brain damage. This type of injury commonly happens when the child's head is slammed against a wall, floor or some other hard surface. When a child arrives at a hospital and presents with such a brain injury, law enforcement are often quick to suspect the parents or babysitter. In their zeal to punish someone for causing a child such a horrific injury, law enforcement sometimes points to the wrong person. The mere accusation of beating up a child can be devastating to your personal and professional relationships. Thus, if you are suspected of assaulting a child, even if you have not yet been arrested, it is a good idea to get ahead of the situation and immediately contact an experienced Queens Reckless Assault of a Child Lawyer who will explain to you your legal options and vigorously defend you until the case is resolved.

Definition of Reckless Assault of a Child

Reckless assault of a child is a criminal offense meant to punish adults who injure children who are under 5 years old. You will face this charge if you are at least 18 years and you assault a child who is under 5 years old by shaking, slamming or throwing the child, and as a result of the assault, the child suffers a serious brain injury. It is a Class D felony and carries a possible prison sentence of up to 7 years. The type of injury that is required for you to face this charge includes:

  • Extreme rotational cranial acceleration and deceleration
  • Subdural hemorrhaging
  • Intracranial hemorrhaging
  • Retinal hemorrhaging
  • Other serious brain injury that is so severe that the child might die or suffer a protracted physical impairment

N.Y. Pen. Law §§ 10.00(10) and 120.02

The types of injuries that the child victim suffers are collectively commonly referred to as shaken baby syndrome and are linked to child abuse. However, to sustain such injuries a child does not have to be shaken, but could be thrown or slammed.

It is important to know that unlike some other forms of criminal assault in order to be charged with reckless assault of a child, intent to cause serious physical injury is not necessary. All that is necessary is that your actions were reckless and resulted in the serious injury to the child victim. Under New York criminal law, you would have acted recklessly if you were aware of and disregarded a significant risk that your actions would result in such an injury to the child. One example of reckless behavior is voluntary intoxication. For instance, if you get drunk and then assault a child, your actions would be deemed reckless. N.Y. Pen. Law § 15.05(3)

The Arrest and Arraignment

In some cases if you are suspected of committed and are arrested the police officer will issue you a Desk Appearance Ticket (DAT). With a DAT you are required to show up at a specified place and time for your arraignment. However, you will not be detained in Central Booking while awaiting your arraignment. Because reckless assault of a child degree is a Class D felony, you will not receive a DAT. Usually DATs are only given for misdemeanors. Therefore, if you are arrested for reckless assault of a child you will end up in Central Booking where you will remain for up to approximate 24 hours until your arraignment. At the arraignment the prosecutor will announce the exact charges against you. You will also learn whether you will be held without bail, released on your own recognizance, or released after paying bail. Whether or not the judge will require bail and the amount of bail will be based on how much of a flight risk the court determines you to be.

Following your arraignment there will be a number or hearings and meetings. The prosecutor may offer you a deal that would require you to plead guilty to lesser charges. If you agree then you will receive a sentence based on the lesser charge and you will avoid a trial. If no plea deal is agreed upon, then you will ultimately go to trial.

Defenses to an Assault Charge

Type of Injury. In order to prove that you committed reckless assault against a child, the child must suffer very specific type of physical injury. If the injury is not a serious brain injury, then the prosecutor will not be able to sustain a charge of reckless assault of a child. The prosecutor must rely heavily on medical evidence to prove the type and extent of injuries. Likewise, you may also need to rely heavily on medical evidence to show that the case does not meet the statutory requirements. However, if the prosecutor was able to show that you assaulted a child even if the child's injuries were not of the type defined by the reckless assault of a child statute, you may still be convicted of another offense such as reckless endangerment, child endangerment, or assault in the first, second or third degree.

Misidentification. When a child suffers brain injury the severity of the injuries and symptoms may not be apparent for hours or even a few days after the assault. For example, common signs of traumatic brain injury include vomiting, sleepiness, disorientation and headache. Such symptoms in a child who is less than 5 years old may not alarm a parent or caregiver enough to seek medical assistance. Thus, when medical assistance is finally sought it may be unclear as to who was likely responsible for the child's injuries or when the injuries occurred.

Consequences of an Assault Conviction

If you are convicted of reckless assault of a child your sentence will include prison, payment of fines and fees, and post-release supervision. In addition, an Order of Protection will likely be placed against you in favor of the child.

Prison

Reckless assault of a child is a Class D felony. The maximum possible sentence is 7 years in prison. N.Y. Pen. Law § 70.02. Because reckless assault of a child is also classified as a violent felony, the judge is required to impose a minimum sentence of 2 years in prison. Your sentence will be determinate, meaning that it will be a set period of years and not a range of years. The actual length of your prison sentence will depend on factors such as your prior criminal record.

  • Prior convictions: You have been convicted of a felony within the prior 10 years.
  • Non-Violent Predicate Offender: You have been convicted of a non-violent felony within the last 10 years.
  • Violent Predicate Offender: You have been convicted of a violent felony within the last 10 years.
  • Persistent Felony Offender: At least 2 prior felony convictions.

Even if you have no prior convictions, the judge will be required to sentence you to at least 2 years in prison. If your status is that of a non-violent predicate offender, then the court will sentence you to at least 3 years for a reckless assault of a child conviction, while if you are a violent predicate offender you will be sentenced to at least 5 years in prison. If you are a persistent felony offender, then the minimum sentence you will receive is 12-25 years in prison and the maximum sentence is life in prison. N.Y. Pen. Law § 70.08. You will be required to serve 6/7 of your sentence before you will be eligible for release. Upon release you will be required to serve a term of post-release supervision.

Post-Release Supervision

Following your release from prison you must serve the part of your sentence that is known as post-release supervision. N.Y. Pen. Law § 70.45(e). The purpose of post-release supervision is to ensure that when you are released from prison, you experience a smooth re-integration into the community. Conditions will be placed on you to ensure this smooth re-integration and to help ensure that you do not reoffend:

  • You must not commit a crime
  • You must not hang around others have criminal records
  • You must not go to unlawful or disreputable places
  • You must not possess or use a controlled substance
  • You must submit to drug testing
  • You must attend a drug or alcohol education class
  • You must refrain from consuming alcohol
  • You must consent to warrantless searches
  • You must regularly report to your Parole Officer
  • You cannot leave the State of New York without permission
  • If you move you must let your Parole Officer know of your new address
  • You must now possess a gun
  • You must stick to a curfew
  • You must have job or attend school

If you fail to follow the rules associated with your post-release supervision, you risk going back to prison.

Fines, Fees and Restitution

Being convicted of reckless assault of a child also can have substantial financial consequences as you will likely be required to pay a fine, fees and restitution. In addition to being sentenced from 2 to 7 years in prison you may also be required to pay a fine of up to $5,000. Furthermore, you will be required to pay certain fees including a fee that is called a "mandatory surcharge" of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay fees related to your post-release supervision of $30 per month.

Another financial consequence of a reckless assault of a child conviction is that you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. However, because the child's injuries would be so severe, the court may increase the amount to more than $15,000 to cover the child victim's medical expenses. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

If you do not fulfill you financial obligations there are a number of possible legal consequences. However, if you cannot 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.

Orders of Protection

As part of the criminal process, the prosecutor may request and the judge may grant an Order of Protection in favor of the victim. An Order of Protection is a court order requiring you to stay away from another person. Such orders are usually very specific about what you cannot do and what you must do. For example, an Order of Protection may state that you are not permitted to go near the victim. If you live with the victim, an exclusionary Order of Protection may be issued, requiring you to move. If you are the parent of the victim, you may be ordered to pay child support. If you violate an Order of Protection, you could face a criminal contempt charge.

Additional Consequence

Once you serve your prison sentence, there will be an additional consequence that may affect the rest of your life. You will have a criminal record that includes a felony. Nowadays, most employers will run a criminal background check before hiring. It will be easy for a potential employer to learn that you were convicted of assaulting a child. In fact, there are some jobs that you cannot hold if you have a felony record, such as teaching, practicing law, working as a security guard, or working as a child care worker.

Being arrested for reckless assault of a child is serious. If you are convicted, many aspects of your life may change forever. Not only will you end up in prison, but you will also suffer significant financial consequences. However, there may be defenses to a charge of reckless assault to a child that only an experienced practitioner will understand. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with reckless assault of a child 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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