Suffolk County Assault

If you intentionally or recklessly cause physical harm to another person you could be charged with one of several assault crimes defined in New York Penal Law. The specific charge you will face will depend on a number of factors including the seriousness of the injury to the victim, if the victim is part of special protected class such as a child, someone over the age of 65, a law enforcement officer, a firefighter or a social worker, whether a gun or knife was used, whether a dangerous instrument was used, and whether the assault included a sex crime. While a few types of assaults are classified as misdemeanors the vast majority of them are felonies. The punishment for the most serious type of assault is up to 25 years in prison. You could spend the rest of your life in prison if you have prior violent felony convictions. In addition, you will face substantial financial penalties. If you have been charged with any type of assault even if it is a misdemeanor it is critical that you speak with an experienced Suffolk County Assault Lawyer who will listen to the facts of your case and who will aggressively defend you against the charges.

Types of Assault

Under New York Penal Law there are several different assault offenses including assault, reckless assault of a child, vehicular assault, gang assault and sexual assault.

Assault in the third degree is a Class A misdemeanor. To be charged with assault in the third degree you must have intended to cause physical injury to another person, and you must have in fact caused injury to that person or to a third person. You may also face a charge of third degree assault if you recklessly cause physical injury to another person, or if with criminal negligence you caused physical injury to another person using a deadly weapon. N.Y. Pen. Law § 120.00. Typically, this is the charge you will face if you assault someone and the injuries are minor.

Assault in the second degree is a Class D felony. There are several different factors that if present would raise an assault to the level of assault in the second degree. For example, if you intended for the victim to suffer serious physical injuries and the victim did indeed suffer serious physical injuries as a result of the assault, you could face a charge of assault in the second degree. N.Y. Pen. Law § 120.05. Another factor that could raise an assault to the level of assault in the second degree is if you used a deadly weapon or dangerous instrument. A dangerous instrument is defined as any object that could be used to cause serious physical injury. N.Y. Pen. Law § 10.00(13).

If you assault a police officer, nurse, firefighter, paramedic, prosecutor or any other official, you will automatically face a charge of at least assault in the second degree if that assault prevented the official from performing his or her official duties.

Furthermore, if you assault a person who is 65 years old or older and you are more than 10 years younger than that person, or you assault a person who is 11 years old or younger and you are at least 18 years old, you will face a second degree assault charge.

Assault in the first degree is a Class B felony. It carries a possible prison sentence of up to 25 years in prison. You will face a charge of assault in the first degree if you used a deadly weapon or dangerous instrument to cause serious physical injury to another person; if you permanently disabled another person; if with depraved indifference to human life you put another person at risk of death and doing so you seriously injured that person; or if while committing a felony you caused serious injury to another person.

Reckless assault of a child is a Class D felony. In order to face this charge you must be at least 18 years old. This type of assault involves causing serious injury to the brain of a child who is less than 5 years old by shaking, slamming, or throwing that child. N.Y. Pen. Law § 120.02. For example in the case of People v. Marsh, 954 N.Y.S.2d 474 (2012) the defendant was charged with reckless assault of a child and child endangerment after throwing a 15 month old child in a crib, causing her to hit her head. The child suffered brain damage.

Reckless assault of a child by a Day Care Provider is a Class E felony. This assault involves an owner or employee of a day care provider recklessly causing serious physical injury to a child who is less than 11 years old by shaking. N.Y. Pen. Law § 120.01. It is important to note that the standard for reckless assault of a child by a day care provider is different from the standard for reckless assault of a child.

Vehicular assault in the second degree is a Class E felony. You will face a charge of vehicular assault in the second degree if you drive you vehicle while under the influence of drugs or alcohol and seriously injure another person. N.Y. Pen. Law § 120.03

Vehicular assault in the first degree is a Class D felony. This offense is similar to vehicular assault in the second degree except that you also

  • have a blood alcohol level of at least .18
  • have a license that was suspended or revoked in another state
  • have a prior conviction for operating a motor vehicle while under the influence of alcohol or drugs
  • Cause serious injury to more than one person
  • Have a prior conviction for vehicular assault
  • Have a prior conviction of vehicular homicide
  • Have a child who is 15 years old or younger in the car with you

N.Y. Pen. Law § 120.04

Aggravated vehicular assault is a Class C felony. You will face a charge of aggravated vehicular assault if you commit the crime of vehicular assault in the second degree while driving recklessly, and you also

  • have a blood alcohol level of at least .18
  • have a license that was suspended or revoked in another state
  • have a prior conviction for operating a motor vehicle while under the influence of alcohol or drugs
  • Cause serious injury to more than one person
  • Have a prior conviction for vehicular assault
  • Have a prior conviction of vehicular homicide
  • Have a child who is 15 years old or younger in the car with you

N.Y. Pen. Law § 120.04-a

Gang assault in the second degree is a Class C felony. You will face this charge if you have the intent to cause injury to another person and you in fact cause serious physical injury to another person with the aid of at least 2 other people. N.Y. Pen. Law § 120.06

Gang assault in the first degree is a Class B felony. You will face this charge if you have the intent to cause serious injury to another person and you in fact cause serious physical injury to another person with the aid of at least 2 other people. N.Y. Pen. Law § 120.07

Sexual assault is a general term to describe several different sex offenses including forcible touching, sexual abuse, criminal sexual act, sexual misconduct, sexual conduct against child, female genital mutilation, and facilitating a sexual offense with a controlled substance.

Defenses to assault charge

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. For example, in Killon v. Parrotta, 950 N.Y.S.2d 525 (2012) defendant Robert Parrotta was acquitted of assault charges based on justification. The victim, plaintiff Stacey Killon, had indeed initiated the altercation by making threatening calls to Parrotta and when Parrotta arrived at Killon's house Parrotta swung a maul at Parrotta. However, the court found that Parrotta initiated the violence by driving to Killon's home, advancing to Killon's front porch with a bat, and demanding a fist fight.

Injury. To be convicted of some assault charges there are very specific requirements for the type of injury that the victim must receive. For example, in order to charge you with assault in the first degree, the prosecutor must be able to show that the victim's injury was so severe that the there was a good chance that the victim might die or suffer a protracted physical impairment. N.Y. Pen. Law § 10.00(10). If you can show that the victim's injuries were in fact not serious, then you may have a valid defense to assault in the first degree charges. For example, in People v. Philips, 992 N.Y.S.2d 104 (2014), the defendant's conviction on an assault in the first degree charge was overturned on appeal. The court agreed with the defendant that there was no evidence that the victim suffered a serious physical injury. However, even if you can show that the evidence did not support a first degree charge, it might support a less severe assault charge. That is what happened in People v. Philips. Philips first degree conviction was reduced to a third degree assault conviction. Of course the punishment for a third degree conviction is less severe than the punishment for a first degree assault conviction.

Consequences of an Assault Conviction

If you are convicted of an assault crime, your sentence may include incarceration, a fine, restitution and community supervision. Whether or not you are sent to prison depends largely on the seriousness of the assault crime of which you are convicted and your prior criminal record.

Prison.
  • Class A misdemeanor. The maximum possible sentence is 1 year in jail and a fine of up to $1,000. The following assault offense is a Class A misdemeanor: assault in the third degree. While those convicted of misdemeanors often are not sentenced to jail if you have a prior criminal history jail is likely to be part of your sentence. In People v. Hick, 924 N.Y.S.2d 311 (2010) defendant Simon Hick pleaded guilty to assault in the third degree. While Hick could have received a probation sentence because of Hick's long, violent criminal history, the prosecutor and the court felt that a sentence of 120 days in jail was appropriate.
  • Class E felony. The maximum possible sentence is 4 years in prison. The following assault offenses are Class E felonies: reckless assault of a child by a child day care provider, aggravated assault upon a person less than eleven and vehicular assault in the second degree.
  • Class D felony. The maximum possible sentence is 7 years in prison. The following assault offenses are Class D felonies: assault in the second degree, reckless assault of a child, and vehicular assault in the first degree.
  • Class C felony. The maximum possible sentence is 15 years in prison. The following assault offenses are Class C felonies: gang assault in the second degree and aggravated vehicular assault. For example, in the case of In the Matter of Benedict, 968 N.Y.S.2d 875 (2013), after being convicted of aggravated vehicular assault, defendant Tabber Benedict was sentenced to 3 1/2 to 10 years in prison.
  • Class B felony. The maximum possible sentence is 25 years in prison. The following assault offenses are Class B felonies: assault in the first degree and gang assault in the first degree.

Post-release supervision and probation. If you are convicted of assault your sentence may include being placed in community supervision program of post-release supervision or probation. Community supervision is a type of sentencing that allows offenders to live at home, work in the community, support their families, and receive supportive services in a way that also keeps the community safe. Post-release supervision is a term of community supervision that follows a term of imprisonment, while probation is a term of community supervision that an offender may receive in lieu of prison or may in addition to prison. There will be several rules that you must follow while you are on community supervision. Such rules may include 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 violate any of the terms of your community supervision you may be sent to prison.

Fines and restitution. Your sentence may also include the payment of a fine of up to $1,000 for a misdemeanor and $5,000 for a felony as well as 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 restitution amount to more than the statutory maximum to cover the amount of the victim's medical expenses.

Fees. Furthermore, you will be required to pay certain fees including a "mandatory surcharge" of $175 for a misdemeanor and $300 for a felony as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If your sentence includes community supervision you will be required to pay a supervision fee of $30 per month.

Order 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 designed to keep the victim safe by limiting your actions. For example, an Order of Protection may state that you are not permitted to go near the victim, the victim's children and the victim's place of employment. If you live with the victim, you may be ordered to move. If you violate an Order of Protection, you could face additional criminal charges. Even if you do not feel that you committed the crime on which the Order of Protection was based, as long as the Order of Protection is in effect you must follow it. If you violate it you could face yet another criminal charge of criminal contempt.

Sex offender registration. If you are convicted of sexual assault you will also be required to register as a sex offender. N.Y. Cor. Law § 168. Being a registered sex offender impacts many aspects of your life. The New York Sex Offender Registration Act requires that a sex offender register for at least 20 years, and in some cases for the rest of your life. If you are a considered a sex offender who presents a substantial risk of re-offending, your name will be made public and easily accessible on the internet.

Additional consequences. If you are convicted of an assault crime in addition to facing prison, probation, fines and restitution, 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 nurse, security guard, home healthcare worker, teacher or a lawyer. 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.

If you have been charged with any type of assault offense, it is important that you immediately seek experienced legal guidance. The potential consequences of being convicted of assault involves spending years in prison and paying significant fines. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with crimes such as assault, 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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