Suffolk County Assault with a Dangerous Instrument

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

Under New York Penal Law assault is a criminal offense that involves intentionally or recklessly causing physical injury to another person. While an assault can be accomplished using your hands, such as in a fistfight, objects are often used in assaults. Almost any object can be used to assault and injure another person. For example, you may be in the midst of a heated argument, and you might have grabbed an object that just happened to be nearby. You then hurled it at the other person, causing injury. In such a case you may face a charge of assault with a dangerous instrument. Because an assault with a dangerous instrument is likely to leave the victim with painful and permanent physical injuries, the penalties for a conviction for assault with a dangerous instrument conviction can be rather 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 using a dangerous instrument it is important that you immediately contact an experienced Suffolk County Assault with a Dangerous Instrument Lawyer who will review the facts of your case and aggressively defend you until your case is resolved.

Assault with a dangerous instrument charges

Using a dangerous instrument to commit an assault is not the same as using a deadly weapon to commit an assault. New York's criminal code defines a deadly weapon as a gun or knife. However, dangerous instrument is defined much more broadly. It is defined as any object or substance that is readily capable of causing a serious physical injury or death. In order, for an object to be an dangerous instrument, the object is not designed to cause physical injury or death, but it was used in such a way that it caused or could cause a serious injury or death. An assault with a dangerous instrument charge can be any one of 3 different types of assault charges including assault in the first degree, assault in the second degree, and assault in the third degree.

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. In one case the defendant was charged with assault in the first degree after repeatedly striking the victim with a bar stool. People v. Sharpe, 896 N.Y.S.2d 189 (2010)

Assault in the second degree. Assault in the second degree with a dangerous instrument is similar to assault in the first degree with a dangerous instrument. The difference is that with second degree assault, you intend to injure another person while with first degree assault your intent is to seriously injure another person. N.Y. Pen. Law §§ 120.05 and 120.10. Assault in the second degree is a Class D felony. For example, in People v. Warren, 949 N.Y.S.2d 496 (2012), defendant Andrew Warren was convicted of assault in the second degree based on throwing the victim down a staircase onto a concrete landing, causing injury. While a concrete landing is not commonly viewed as a dangerous instrument, when used in the manner that the defendant used it, it became a dangerous instrument. In People v. Tehonica, 847 N.Y.S.2d 257 (2007) the defendant faced an assault charge after striking the victim with a pool cue.

Assault in the third degree. Assault in the third degree is the least serious assault with a dangerous instrument crime. It is a Class A misdemeanor. You will face this crime if with criminal negligence you cause physical injury to another using a dangerous instrument. 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). People v. Scott, 958 N.Y.S.2d 310 (2010) is an example of how just about any object can be adjudged to be a dangerous instrument. In this case defendant Jermaine Scott hit the victim on the head with a Sony Playstation console and as a result faced a charge of assault in the third degree.

Defenses to an Assault Charge

Extent of Injury. To sustain any assault charge, at a minimum the victim must experience a "physical injury." Physical injury is defined as an impairment of physical condition or substantial pain. This means that the injury to the victim must be more than minor. If the victim experiences some discomfort and brief bruising that does not leave a scar or require hospital treatment, the prosecutor will have a difficult time proving the crime of assault. Other assault crimes such as assault in the 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 injuries that were so severe that the there was a good possibility that the victim might die or suffer an extended physical impairment. N.Y. Pen. Law § 10.00(10). 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 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. Thus, if the reason that you injured the other person is because you were protecting yourself from that person, then you may have a valid defense to an assault charge. However, to use the justification defense, the other person had to have initiated the violence and not you. In addition, you cannot use more force than is reasonably necessary to protect yourself.

Consequences of an Assault Conviction

Whether you go to jail or prison for an assault with a dangerous instrument conviction depends on the specific charge of which you are convicted as well as your criminal history. 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 dangerous instrument, you are likely to be sentenced to prison. The actual length of your prison sentence will depend on factors such as your prior criminal record.

  • Class A misdemeanor. The maximum possible sentence is 1 year in jail and a fine of up to $1,000.
  • Class D felony. The maximum possible sentence is 7 years in prison and a fine of up to $5,000. If you have no prior felony convictions within the prior 10 years, the minimum prison sentence that you will face is 2 years. If you have a prior non-violent felony conviction the minimum prison sentence that you will face is 3 years. If you have a prior violent felony conviction the minimum prison sentence you will face is 3 years. If you are classified as a persistent felony offender because you have 2 prior felony convictions, then the rules are drastically different. The minimum prison sentence is 12-15 years and the maximum is life.
  • Class B felony. The maximum possible sentence is 25 years in prison and a fine of up to $5,000. If you have no prior felony convictions within the prior 10 years, the minimum prison sentence that you will face is 5 years. If you have a prior non-violent felony conviction the minimum prison sentence that you will face is 8 years. If you have a prior violent felony conviction the minimum prison sentence you will face is 10 years. If you are a persistent felony offender you could face up to life in prison.

Fines and Restitution. There are hard financial consequences to being convicted of a crime in New York. In addition to sentencing you to prison, the court can also order you to pay a fine as well as restitution. If you are convicted of assault in the third degree, a misdemeanor, the fine will be up to $1,000, while if you are convicted of second or first degree assault the fine will be up to $5,000. Furthermore, the court may order you to pay restitution to victim for his or her out-of-pocket losses that result from the assault. Typically, this will mean that you will be required to pay for the victim's medical expenses. The cap is typically $10,000 for misdemeanors and $15,000 for felonies. However, the judge may order a higher restitution if the victim's medical expenses exceed the statutory restitution limit.

Probation. Whether you are convicted of misdemeanor or felony assault with a deadly weapon, your sentence may include probation. For a felony the probation term will be 5 years, while for a misdemeanor it will be 3 years. There will be several rules that you must follow while you are on probation. N.Y. Pen. Law § 65.10. The rules associated with probation vary from person to person, but may include that:

  • You must not commit a crime
  • You must not leave the State of New York without permission
  • You must consent to warrantless searches
  • You must not associate with disreputable people
  • You must not patronize disreputable places
  • You must refrain from consuming alcohol
  • You must complete an alcohol or substance abuse program
  • You must have job or attend school
  • You must submit to electronic monitoring
  • You must regularly report to your Probation Officer

If you violate any of the terms of your probation your Probation Officer may file a Violation of Probation with the court. You will then be required to appear in court for a hearing during which the judge will listen to evidence and determine if you did indeed violate the terms of your probation. If you did violate the terms of your probation, the judge may allow you to continue on probation with additional restrictions or revoke your probation and resentence you to jail.

Post-Release Supervision. If you are convicted of first or second degree assault with a dangerous instrument offense, 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). Post-release supervision is similar to probation in that they are both types of community supervision. Like probation, you will be requires to follow a set of rules. Like probation, if you violate a rule, you risk being sent to prison.

Orders of Protection. If you are charged with assault in the third degree the prosecutor will request an order of protection for the victim, also referred to as the complaining witness. The judge will decide whether the circumstances warrant an Order of Protection. If once is issued, then the judge will also determine the terms and conditions will be included in the order. If you are released on bail or on your own recognizance, abiding by the Order of Protection will be a condition of your release.

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.

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 be charged with criminal contempt and sent to prison.

Criminal Record. Even though assault in the third degree is a misdemeanor and not a felony, it is still a crime. While your sentence may only be probation or just a few months in prison, once you are released you will have to live with having a criminal record which will negatively impact several aspects of your life. With a simple background check a potential employer or a college admissions officer will quickly learn that you were convicted of assault. As a result, you may lose career opportunities. A criminal record is likely to prevent you from 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.

Being arrested for assault with a dangerous instrument is serious, even if the charge is a misdemeanor and not a felony. If you are convicted many other aspects of your life may change forever. However, there may be defenses to a charge of assault with a dangerous instrument that only an experienced practitioner will understand and be able to apply to your case. Thus, if you have been arrested for assault with a dangerous instrument or any assault charge, it is important to immediately contact someone 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 assault with a dangerous instrument, assault with a deadly weapon, 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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