Suffolk County Domestic Violence and Assault

N.Y. Pen. Law §§ 120.00, 120.02, 120.05, 120.10 & 130.00-130.91

Domestic violence is defined as violence between people who have some sort of or intimate relationship. While domestic violence can take a number of different forms it commonly involves assault. Assault is a criminal offense related to intentionally or recklessly causing physical harm to another person. There are several different types of assault charges in New York Penal Law. There are special assault charges related to sexual assault or using a vehicle to commit an assault. The assault charge will be more serious if you used a deadly weapon or dangerous instrument such as a gun, knife, or car. If during the assault you seriously injured the victim, you will be charged with a more serious assault offense. The punishment for the most serious type of assault is more than 2 decades in prison. If you have been charged with any type of assault related to an act of domestic violence it is critical that you speak with an experienced Suffolk County Domestic Violence and Assault Lawyer who will listen to the facts of your case and who will aggressively defend you against the charges.

Types of Domestic Violence Assault

Verbal disputes between those in a domestic relationship sometimes escalate to shoving, kicking, hitting, punching, throwing objects and violence using weapons. If the other person is injured you may be charged with one of several assault offenses. While one assault offense is a misdemeanor, most are felonies.

Assault. There are 3 degrees of assault: assault in the third degree, assault in the second degree and assault in the first degree. N.Y. Pen. Law §§ 120.00, 120.05 and 120.10

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.

Assault in the second degree is a Class D felony. If in an act of domestic violence you seriously injure your spouse, girlfriend, boyfriend, or roommate and you intended to cause that person serious harm, then instead of facing a misdemeanor charge of assault in the third degree, you will e charged with assault in the second degree. N.Y. Pen. Law § 120.05. Under New York law a serious physical injury is an injury that creates a substantial risk of death, that causes death, or that causes serious disfigurement or impairment. N.Y. Pen. Law § 10.00(10).

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. The statute defines a deadly weapon as a gun, switchblade knife, dagger, billy, blackjack, plastic knuckles or metal knuckles. N.Y. Pen. Law § 10.00(12). A dangerous instrument is defined as any object that could be used to cause serious physical injury. N.Y. Pen. Law § 10.00(13). A dangerous instrument can be practically anything when used as a means to hurt another person.

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. N.Y. Pen. Law § 120.10. People v. Pignataro, 980 N.Y.S.2d 899 (2013) is an example of a case of domestic violence where the defendant was convicted of assault in the first degree. Here, defendant Anthony Pignataro assaulted his wife by poisoning her.

Reckless assault of a child is a Class D felony. Many do not view child abuse as domestic violence. However, assaulting a child who is a member of your family or a member of your household is indeed a type of domestic violence. In order to face a charge of reckless assault of a child you must be at least 18 years old and you must have caused 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.

Sexual assault is a common type of domestic violence. While some believe that it is not possible to sexually assault a wife or girlfriend, it is indeed possible. Sexual assault is a general term to describe several different sex offenses including rape, forcible touching, sexual abuse, criminal sexual act, sexual misconduct, sexual conduct against child, and facilitating a sexual offense with a controlled substance. Each offense involves having some sort of sexual contact with another person without that person's consent. For example, if you have sexual intercourse with your wife, girlfriend or roommate without her consent, then you may face a sexual assault charge of rape in the third degree. N.Y. Pen. Law § 130.25. If you do so using physical force, you could face a charge or rape in the first degree. N.Y. Pen. Law § 130.35.

Consequences of an Assault Conviction

If you are convicted of assault in the context of domestic violence there is a very good chance that your sentence will include incarceration. It will also likely include a fine, fees, restitution, and possibly post-release supervision or probation. Whether or not you are sent to jail depends largely on the seriousness of the crime of which you are convicted and your prior criminal record.

Prison and Fines
  • Class A misdemeanor. The maximum possible sentence is 1 year in jail and a fine of up to $1,000. Assault in the third degree is a Class A misdemeanor. Certain sexual assault offenses are also misdemeanors such as sexual misconduct, forcible touching, and sexual abuse in the second degree.
  • Class E felony. The maximum possible sentence is 4 years in prison and a fine of up to $5,000. Several sexual assault offenses are Class E felonies such as rape in the third degree, criminal sexual act in the third degree, and aggravated sexual abuse in the fourth degree.
  • Class D felony. The maximum possible sentence is 7 years in prison and a fine of up to $5,000. The following assault offenses are Class D felonies: assault in the second degree, and reckless assault. Rape in the second degree, criminal sexual act in the second degree, aggravated sexual abuse in the third degree and sexual abuse in the first degree are also Class D felonies.
  • Class C felony. The maximum possible sentence is 15 years in prison and a fine of up to $15,000. Aggravated sexual assault in the second degree is a Class C felony.
  • Class B felony. The maximum possible sentence is 25 years in prison and a fine of up to $30,000. Assault in the first degree is a Class B felony as are rape in the first degree, criminal sexual act in the first degree, and aggravated sexual abuse in the first degree.
Probation

If you are convicted of assault your sentence may include probation. This is likely to be the case if the offense is a misdemeanor, or if the circumstances of your case do not require the judge to following minimum sentencing guidelines that require incarceration. The term of probation will be 3 years for a misdemeanor conviction or 5 years for a felony conviction. For sex offenses the probation terms are twice as long. If your sentence includes both prison and probation, you will serve the terms concurrently. This means that if your sentence is 4 years in prison and 5 years of probation, you will serve 4 years of probation while you are in prison and the remaining year once you are released.

While serving your probation sentence you will be subject to many rules. If you break any of the rules a judge could revoke your probation and resentence you to prison. The rules will include that you cannot commit another crime, you must have a job, you must not associate with people criminal histories, you must not patronize unlawful places, you must not drink alcohol excessively, you must not use illegal drugs or drug paraphernalia, and you must support your family. In addition, you will be required to report to your probation officer on a regular basis.

Post-Release Supervision

If convicted of a violent felony assault part of your sentence will include a term of post-release supervision of up to 5 years. Like probation, while you serve your term of post-release supervision there will be several rules that you must follow. 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.

Orders of Protection

As part of the criminal process the prosecutor may request 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 share a home with the victim, you may be ordered to move. If you violate an Order of Protection, you could face additional criminal charges.

If you have been charged with any type of assault offense related to an act of domestic violence it is important that you immediately seek experienced legal guidance. The potential consequences of being convicted of assault involve 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 domestic violence offenses 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 domestic violence in the following locations:

CONTACT US FOR A FREE CONSULTATION
1-800-NY-NY-LAW (1-800-696-9529)