Suffolk County Assault with a Gun

Suffolk County Assault with a Gun Lawyer

Assault is the crime of intentionally or recklessly causing physical injury to another person. While there are many ways to commit an assault one of the most violent ways is by using a gun. In fact, if you commit the crime of assault with a gun you will face a serious criminal charge because the use of a gun increases the likelihood of the victim suffering a serious injury or death. Furthermore, the consequences of an assault with a gun conviction are harsh. You could end up spending years in prison, facing significant financial consequences, and you will end up with a criminal record for the rest of your life. Thus, if you have been charged with assaulting someone with a gun it is important that you immediately contact an experienced Suffolk County Assault with a Gun Lawyer who will review the facts of your case and aggressively defend you until your case is resolved.

Assault with a gun charges

While there is not one specific New York criminal offense that is called "assault with a gun," there are several possible charges that you might face if you used a gun to assault another person, including assault in the first degree, assault in the second degree, and assault in the third degree. Each of these criminal offenses addresses assaulting another person using a deadly weapon. A gun is considered a deadly weapon under the statute. N.Y. Pen. Law § 10.00 (12). You may face a charge of assault with a gun if you shot another person, or if you use the gun in some other manner such as hitting or "pistol-whipping" another person with the gun.

Assault in the first degree. The prosecutor may charge you with assault in the first degree if you intentionally seriously injure another person using a gun. N.Y. Pen. Law § 120.10. It is classified as a Class B felony. For example, in People v. Forde, 080614 NYAPP2, 2014-05650 (August 6, 2014) defendant Andre Forde was convicted of assault in the first degree based on shooting a gun at an individual on a basketball court, hitting 3 other people. Although his intent was not to injure the specific 3 people that he did injury, his intent was to seriously injure someone. A serious physical injury is one that presents a substantial risk of death, that causes death, that causes protracted impairment of health, or that causes loss of the function of any bodily organ. N.Y. Pen. Law § 10.00(10)

Assault in the second degree. Assault in the second degree with a gun is similar to assault in the first degree with a gun. 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. A physical injury is defined as an injury that causes a physical impairment or substantial pain. However, if an physical injury is not one that is life-threatening.

Assault in the third degree. Assault in the third degree is the least serious assault with a gun crime. It is a Class A misdemeanor. You will face this crime if with criminal negligence you cause physical injury to another using a gun. 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)

Defenses to an assault with gun charge

Extent of Injury. To sustain any assault with a gun charge at a minimum the victim must experience a "physical injury." As a physical injury is defined as an impairment of physical condition or substantial pain, any gunshot wound would likely qualify. This would be enough for an assault in the third degree. To face a charge of assault in the first or second degree the victim must have sustained a serious physical injury. This means that the District Attorney's evidence must clearly show that the victim suffered more than a relatively minor "flesh wound." The injury must be so severe that the there was a good possibility that the victim might have died or suffered a permanent injury. 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.

For example, in People v. Tran, 729 N.Y.S.2d 851 (2001), the defendant Ricky Tran was convicted of assault in the first degree based shooting the victim in the arm. The victim's wound was treated at the hospital and he was released. At trial the victim showed a slight scar left by the bullet. On appeal the court concluded that even though Tran did indeed shoot the victim that was not enough to sustain a charge of assault in the first degree. There must be some evidence of disfiguration, amputation or of a disabling injury to the victim.

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 with a gun conviction

The sentence that you receive for being convicted of an assault with a gun charge depends on the specific assault 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 gun, you will be sentenced to prison. The actual length of your prison sentence will depend on factors such as your prior criminal record.

Prison. As 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 also classified as a violent felony, the judge is required to impose a minimum sentence of 5 years even if you have no prior convictions. If your status is that of a non-violent predicate offender, meaning that you were convicted of a non-violent felony within the prior 10 years, 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. If you are a persistent felony offender, then the minimum sentence you will receive is 20-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08.

For assault in the second degree 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.

Because assault in the third degree is a Class A misdemeanor. The maximum possible sentence is up to 1 year in jail. N.Y. Pen. Law § 70.02. 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.

Post-release supervision and probation. If you are convicted of an assault with a gun charge 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. However, if you do not believe that an Order of Protection is warranted, then there are ways to fight such an order to get it vacated.

Additional criminal charges. If you are arrested for shooting someone, assault with a gun will likely not be the only criminal charge you face. Depending on the facts of your case, you may also be charged with criminal possession of a weapon, burglary, robbery, sexual assault, manslaughter, or homicide. Any additional charge could result in an addition conviction. You will receive an additional sentence based on the additional conviction.

Additional consequences. Even if you are convicted of only a misdemeanor assault with a gun 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 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.

Being arrested for assault with a gun is serious. If you are convicted, in addition to being sent to prison, you will have to face financial consequences as well as a life with a criminal record. However, there may be defenses to a charge of assault with a gun 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 gun, it is important to immediately contact someone who 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 gun, 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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