Suffolk County Assault with a Deadly Weapon

N.Y. Pen. Law §§ 120.00, 120.05, 120.10, 120.11, 120.12

Assault is the crime of intentionally or recklessly causing physical injury to another person. While assault can be accomplished without the use of a weapon, it is often accomplished with the use of a weapon. In fact, assaults are sometimes accomplished using weapons that are so dangerous that they can cause death. Under the criminal statute, a deadly weapon is generally defined as a gun or a knife. The statute specifically mentions: 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. Because assault with a deadly weapon, sometimes also referred to as aggravated assault, usually leaves the victim with painful and permanent physical injuries, the consequences of an assault with a deadly weapon conviction are harsh. 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 deadly weapon it is important that you immediately contact an experienced Suffolk County Assault with a Deadly Weapon Lawyer who will review the facts of your case and aggressively defend you until your case is resolved.

Assault with a deadly weapon charges

An assault with a deadly weapon charge can be any one of a number of different types of assault charges including assault in the first degree, assault in the second degree, assault in the third degree, aggravated assault on a police officer or peace officer, aggravated assault on a person less than eleven years old, and reckless endangerment in the first degree. In order for any assault to be considered assault with a deadly weapon, a deadly weapon must be used to carry out the assault. New York criminal law defines a deadly weapon as a weapon that is readily able to cause death or a serious physical injury. N.Y. Pen. Law § 10.00(12). The criminal statute gives several examples of deadly weapons: a firearm, a knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles.

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. For example, in People v. Johnson, 967 N.Y.S.2d 217 (2013) defendant Andrea Johnson was convicted of assault in the first degree based on assaulting the victim in such a manner that seriously injured the victim's face. Johnson used a knife or a blade during her attack on the victim.

Assault in the second degree. Assault in the second degree with a deadly weapon is similar to assault in the first degree with a deadly weapon. 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.

Assault in the third degree. Assault in the third degree is the least serious assault with a deadly weapon crime. It is a Class A misdemeanor. You will face this crime if with criminal negligence you cause physical injury to another using a deadly weapon. N.Y. Pen. Law § 120.00

Aggravated assault on a police officer or peace officer. You will face this charge if assault a police officer with intent to cause serious physical injury to the officer, or if you assault a police officer using a deadly weapon. N.Y. Pen. Law § 120.11

Aggravated assault on a person less than eleven years old. You will face this charge if you are at least 18 years old and you assault a child who is 11 years old or younger, and you have been previously convicted of assaulting such a child within the past 3 years. N.Y. Pen. Law § 120.12

Reckless endangerment in the first degree. You will face a charge of reckless endangerment if with depraved indifference to human life, you engage in conduct which creates a grave risk of death to another. It is a Class D felony. N.Y. Pen. Law § 120.25. While the statute does not define "grave indifference to human life" New York courts have interpreted it. In People v. Suarez, 811 N.Y.S.2d 267 (2005), the court defined it to mean an "utter disregard for the value of human life" and "a willingness to act not because one intends to harm, but because one simply doesn't care whether grievous harm results or not.

Arrest and Arraignment

If you are arrested and charged with an assault with a deadly weapon charge the first step is that you will be taken to the local police precinct where initial processing will take place. After initial processing you will be taken to Central Booking where you will remain until your case is called for arraignment.

Arraignment is the first time that you will appear before a judge. At that time you will be formally charged. At that time you will have the opportunity to make a plea of guilty, not guilty or no contest. If you plead not guilty, then the issue of bail will be determined. The judge's options are to release you on your own recognizance, meaning that no bail is required, setting a bail amount, or ordering that you be held without bail.

At some point the prosecutor may offer you a "deal." The prosecutor will try to resolve the case without going through the time and expense of a trial. Thus, the prosecutor may offer you the option to plead guilty to a lesser criminal charge. The incentive to you will be that you would receive a lighter sentence then you would receive if you were found guilty of the original charges are a trial before a judge or jury. However, if you accept the plea agreement you will still be convicted of a crime and you will still receive some sort of punishment.

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 deadly weapon conviction depends the specific charge of which you are convicted. 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 deadly weapon, 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.
  • Class E felony. The maximum possible sentence is 4 years in prison.
  • Class D felony. The maximum possible sentence is 7 years in prison.
  • Class B felony. The maximum possible sentence is 25 years in prison.

For assault with a deadly weapon offenses that are Class B or Class D violent felonies, you will be required to serve 6/7 of your sentence before you will be eligible for release.

Post-Release Supervision

If convicted of a felony assault with a deadly weapon offense, part of your sentence will include a term of post-release supervision of up to 5 years. There will be several rules that you must follow while you are on post-release supervision. While certain rules will apply to all on post-release supervision, Department of Corrections may require specific rules to your post-release supervision that it deems necessary to ensure a smooth, crime-free transition from prison back into the community. Such rules may include that:

  • You must not commit a crime
  • You must not associate with other people who you know have criminal records
  • You must not patronize unlawful or disreputable places
  • You must not possess a controlled substance or drug paraphernalia
  • You must submit to drug testing
  • You must consent to warrantless searches
  • You must submit to home visits by your Parole Officer
  • You must regularly report to your Parole Officer
  • You cannot leave the State of New York without permission
  • You must now own, possess or purchase a gun
  • You must refrain from consuming alcohol
  • You must stick to a curfew
  • You must have job or be enrolled in school

If you violate any of the terms of your post-release supervision, you will receive a revocation hearing before a judge. Based on the evidence presented, the judge may allow you to continue with the post-release supervision with the terms undisturbed, require you to go back to jail for a period and then return to post-release supervision status, or require you to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Fine, Restitution and Fees

In addition to possibly serving time in jail or prison, there are also financial consequences to being convicted of assault with a deadly weapon. As part of your sentence the judge may order you to pay a fine of up to $5,000 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 amount to more than that statutory limit to cover the amount of the victim's medical expenses. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

When you are convicted of a crime in New York, you will be required to pay certain mandatory fees that are in addition to any other financial consequences. You will be required 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 supervision fee of $30 per month.

Failure to pay and ordered fine, fee or restitution, may result in your being charged with a misdemeanor and sent to prison for up to a year, your wages being garnished or a judgment being filed against you. However, if you let the court know that you do not have the means to pay, the judge may adjust the payment terms, lower the amount you are required to pay, or revoke the part of your sentence that requires you to pay.

Orders of Protection

As part of the criminal process, the judge may grant a Temporary Order of Protection in favor of the victim. An Order of Protection is a court order requiring you to stay away from another person or requiring you to stop harassing or threatening 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, the victim's children or the victim's place of employment. If you live with the victim, the order may exclusionary, requiring you to move. If you have children with the victim, you may be ordered to pay child support. If you violate an Order of Protection, you could face additional criminal charges. Based on the outcome of the assault with a deadly weapon charges against you, the Temporary Order of Protection may become a Permanent Order of Protection, meaning that it may remain in place for a number of years.

Long-Term Consequences

Even if you are convicted of a misdemeanor assault with a deadly weapon charge and receive a sentence that includes little or no jail time, 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 teacher, lawyer, security guard, or nursing. In addition, you will not be able to own a gun, 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.

Being arrested for assault with a deadly weapon is serious. If you are convicted, you could be sentenced to spend 25 years in prison. Even if you are sentenced to little time in prison, there are other serious consequences to a conviction. However, there may be defenses to a charge of assault with a deadly weapon 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 deadly weapon, 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 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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