Suffolk County Assault at a Bar

N.Y. Pen. Law §§ 120.00, 120.05

Bars and nightclub are locations are known to be the location for arguments that escalate into physical violence. The combination of alcohol, sometimes drugs, crowds, loud music and late nights, can provide the perfect settings for violent disagreements between patrons who know each other as well as between strangers. Bar fights occur for many reasons or no reason at all. Regardless of the reason for the fight, if you are involved in a bar fight you could face serious criminal assault charges. While there are several different types of criminal charges that you could face based on a bar fight the most common are assault in the third degree, assault in the second degree and assault in the first degree. If you are convicted you could end up in prison for many years and also face thousands of dollars in fines, restitution and fees. Thus, if you have been charged with assault after being involved in a fight at a bar or nightclub, it is important that you speak with an experienced Suffolk County Assault at a Bar Lawyer who will explain to you your legal options and who will aggressively defend you against the charges.

Types of Assault at a Bar Offenses

Assault in the Third Degree. New York Penal Law includes 3 degrees of the crime of assault including assault in the first degree, second degree and third degree. Assault in the third degree is the least serious of the three offenses. You will face a change of assault in the third degree if you intentionally or recklessly physically injure another person, injure a third party when you intended to injure another person, or negligently injure another person using a deadly weapon or dangerous instrument. It is a Class A misdemeanor and carries a possible prison sentence of up to 1 year in jail. N.Y. Pen. Law § 120.00

Assault in the third degree is a common charge for when one person initiates a fight with another person at a bar or nightclub, or one person "beats up" another person. In order to face this charge, the victim must suffer an injury that causes impairment or substantial pain. However, it is not necessary for the injury to be serious or life-threatening. It is just necessary for the victim to suffer some sort of impairment or substantial pain. For example, if the victim loses consciousness as a result of the assault then the court is likely to conclude that the victim suffered an impairment or substantial pain. This is what happened in People v. Enos, 398 N.Y.S.2d 760 (1977). Defendant Robert Enos was convicted of assault in the third degree after kicking the victim in the head while at a bar, causing the victim to lose consciousness.

Assault in the second degree. There are several factors that may cause an assault at a bar to rise from a third degree assault, to a second degree assault, including intending to cause the victim a serious physical injury, assaulting someone using a deadly weapon or dangerous instrument, or reckless injuring someone using a deadly weapon or dangerous instrument. Serious physical injury means an injury that is so severe that there is a good chance that the victim might die or suffer a protracted physical impairment. N.Y. Pen. Law § 10.00(10). A deadly weapon is defined as a loaded weapon from which a shot may be discharged, switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles. N.Y. Pen. Law § 10.00(12). A dangerous instrument is any object is capable for causing death or serious physical injury even if that is not purpose of the object. N.Y. Pen. Law § 10.00(12). An example of a dangerous instrument is a car.

In the case of People v. Burns, 281 A.D.2d 704 (2001) defendant Shonnell Jones was convicted of assault in the second degree based on using a razor blade to sever the temporal artery of the victim during a fight outside a nightclub. In another case, the defendant struck the victim with a pool cue. People v. Tehonica, 847 N.Y.S.2d 257 (2007)

Assault in the first degree. You will face a change of assault in the first degree if with intent to cause serious physical injury you seriously injure another person with a deadly weapon. Or, with indifference to human life you engage in reckless conduct that results in the death or injury of another person. N.Y. Pen. Law § 120.10. As it is one of the most serious assault offenses, assault in the first degree is a Class B felony.

Defenses to an Assault Charge

Physical Injury. In order to sustain a charge of assault in the third degree, the victim must have sustained a physical injury. While it is not necessary for the injury to be severe, there must be some evidence of an injury other than the victim complaining that he or she was hurt. For example, in People v. Enos the fact that the victim lost consciousness was clear evidence that the victim sustained a physical injury. However, if the victim suffered only a minor scratch and required little or no medical attention, then you may have a good argument that the victim did not suffer a physical injury.

Self-Defense. Under New York law you are permitted to use reasonable force to protect yourself or another person from imminent physical danger. N.Y. Pen. Law § 35.15. However, the defense of self-defense, also referred to as justification is not available to the initial aggressor. The initial aggressor is the person who first attacks or first threatens to attack.

Mistaken Identity. In the case of a bar fight, particularly where a fight turns into a melee, there is a good chance that the victim may not have gotten a clear look at who was responsible for the assault. The fact that those involved may be intoxicated may further support a mistaken identity defense. In People v. Diaz, 982 N.Y.S.2d 445 (2014), the defendant Hubert Diaz was convicted of attempted assault in the first degree based on hitting the victim in the head with a machete. The victim latter picked out Diaz from a photo lineup. On appeal the court overturned the conviction noting that there were questions as to the victim's identification of the defendant since the night club was crowded and dimly light. Furthermore, the victim had lapses in memory.

Consequences of an Assault at a bar conviction

The sentence for an assault at a bar conviction depends on two primary factors: the seriousness of the assault offense and your criminal record. Because assault in the third degree is a Class A misdemeanor if convicted the maximum sentence is up to a year in jail. In fact, it is possible that the judge may instead sentence you to probation. On the other hand, for convictions on assault in the first degree or assault in the second degree charges, you will be sentenced to prison. In addition, there will be financial consequences. You will be ordered to pay fees, a fine, and restitution.

Prison

Assault in the third degree. While those convicted of misdemeanors often do not receive jail time, if you have a prior criminal history jail is likely to be part of your sentence.

Assault in the second degree. Assault in the second degree is a Class D felony. The maximum possible sentence is 7 years in prison. N.Y. Pen. Law § 70.02. Because assault in the second degree is also classified as a violent felony, the judge is required to impose a minimum sentence of 2 years in prison. The actual 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 prison sentence you will receive is 2 years. 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, then the court will sentence you to at least 3 years for an assault in the second degree 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; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08. Upon release you will be required to serve a term of post-release supervision.

Assault in the first degree. 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 assault in the first degree is 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. You will be classified based on 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, then the court will sentence you to at least 8 years for an assault in the first degree conviction, while if you are a violent predicate offender, you will be sentenced to at least 10 years in prison.

Probation

If you are convicted of assault at bar, all or part of your sentence by include probation. For a misdemeanor the mandatory probation term for misdemeanors is 3 years, while the mandatory term for a felony is 5 years. Probation is a type of community supervision. As such you will be closely monitored and you will be required to follow several rules such as 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 you are accused of violating probation, you will have a hearing. If you are found to have violated your probation the judge has several options. The judge may extend your probation, change the terms of your probation, order you serve a brief time in jail, or revoke your probation altogether and resentence you to serve the remaining time of your original sentence in prison.

Fines, Restitution and Fees

As part of your sentence the judge may order you to pay a fine. Depending on the specific charge of which you are convicted, the find may be up to $5,000. In addition, the judge may also order that you pay restitution to your victim. Generally, the maximum amount of restitution is $10,000 for a misdemeanor and $15,000 for a felony. However, the court may increase the amount beyond the statutory limits to cover the amount of the victim's medical expenses.

If you are convicted of a crime in New York, you will be required to pay certain fees. You will have to pay a mandatory surcharge of $175-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay a probation supervision fee of $30 per week.

If you do not pay a fine, fee or restitution, you may be charged with a misdemeanor and sent to prison for up to a year, your wages may be garnished or the state of New York may obtain a judgment against you. The court may reduce the amount of the fees, fines and restitution you are required to pay, or change the payment terms based on your financial condition.

If you are involved in a fight a bar or night club and are convicted of an assault offense, you could end up spending years and years in prison. Furthermore, even if you do not receive a long prison sentence you will end up with a criminal record which will negatively impact several aspects of your life. However, there are defenses to an assault charge that may result in the charge to be dropped, reduced or you being acquitted. 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 at a bar, assault in the third degree as well as other misdemeanors and felonies such as assault in the first degree, assault in the second degree, 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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