Suffolk County Reckless Assault of a Child

N.Y. Pen. Law § 120.02

Facing a charge that involves injuring a child is one of the worst criminal charges that you can face. New York law enforcement will aggressively seek to arrest, charge and convict anyone who is accused of hurting a child, particularly if the child suffers a serious injury. If you are charged with reckless assault of a child you are not being accused of spanking a child a little too hard. You will face the charge of reckless assault of a child only if your actions caused the child to suffer a serious brain injury. This type of injury can occur from slamming a child's head against a wall, floor or some other hard surface, or from severely shaking the child. When a child arrives at a hospital and presents with such a brain injury, the parents or babysitter are almost immediately suspected of causing the injury. However, determining when, how and by whom an injury to a child occurred is not always easy to determine, and in law enforcement does not always point to the right person. The mere accusation of assaulting a child can be devastating to your personal and professional relationships. Thus, if you are suspected of assaulting a child, even if you have not yet been arrested, it is a good idea to get ahead of the situation and immediately contact an experienced Suffolk County Reckless Assault of a Child Lawyer who will explain to you your legal options and vigorously defend you until the case is resolved.

Definition of Reckless Assault of a Child

While any type of assault to a child is a criminal offense, reckless assault of a child is punishes a very specific type of assault to a child who is under 5 years old. Specifically, it is mean to punish those who cause children to suffer an injury that is often referred to as "shaken baby syndrome." You will face this charge if you are at least 18 years, you assault a child who is under 5 years old by shaking, slamming or throwing the child, and as a result the child suffers a serious brain injury. The statute defines serious injury to the brain as a brain injury that creates a substantial risk of death, that causes death, that causes serious and protracted disfigurement, or that causes extended impairment of health. The statute also lists 5 specific brain injuries that qualify as serious brain injuries:

  • Extreme rotational cranial acceleration and deceleration
  • Subdural hemorrhaging
  • Intracranial hemorrhaging
  • Retinal hemorrhaging
  • Other serious brain injury that is so severe that the child might die or suffer a protracted physical impairment

Reckless assault of a child is a Class D felony and carries a possible prison sentence of up to 7 years. N.Y. Pen. Law §§ 10.00(10) and 120.02

In one case the defendant shook an 11-month old baby girl to the point where she suffered a traumatic brain injury. The defendant was convicted of reckless assault of a child. People v. Moore, 976 N.Y.S.2d 587 (2013).

It is important to know that unlike some other forms of criminal assault in order to be charged with reckless assault of a child, intent to cause serious physical injury is not necessary. All that is necessary is that your actions were reckless and resulted in the serious injury to the child victim. Under New York criminal law, you would have acted recklessly if you were aware of and disregarded a significant risk that your actions would result in such an injury to the child. One example of reckless behavior is voluntary intoxication. For instance, if you get drunk and then assault a child, your actions would be deemed reckless. N.Y. Pen. Law § 15.05(3)

Defenses to an Assault Charge

Type of Injury. In order to prove that you committed reckless assault against a child, the child must suffer a very specific type of physical injury. First, the injury must be a brain injury. Second, the brain injury must be a serious brain injury. If the brain injury is less than serious or if the injury was not a brain injury, then the prosecutor will not be able to prove a case of reckless assault against a child. The prosecutor must rely heavily on medical evidence to prove the type and extent of injuries. Likewise, you may also need to rely heavily on medical evidence to show that the case does not meet the statutory requirements. However, if the prosecutor is able to show that you assaulted a child even if the child's injuries do not fit the requirements of the reckless assault of a child statute, you may still be convicted of another offense such as assault in the first, second or third degree.

Misidentification. When a child suffers a brain injury the severity of the injuries and symptoms may not be apparent immediately after the incident, or the child's parents may not recognize the symptoms to be signs of a severe injury. For example, common signs of traumatic brain injury include vomiting, sleepiness, disorientation and headache. Such symptoms in a child who is less than 5 years old may not alarm a parent or caregiver enough to seek medical assistance. When medical assistance is finally sought it may be unclear as to who was likely responsible for the child's injuries or when the injuries occurred. For example, in People v. Groth, 896 N.Y.S.2d 547 (2010) defendant Matthew Groth's conviction was overturned as the court found that the evidence did not support Groth's conviction because the child experienced vomiting and showed other signs of distress 2-3 days prior to when Groth was alleged to have assaulted the child.

Consequences of a Reckless Assault of a Child Conviction

If you are convicted of reckless assault of a child your sentence will undoubtedly include prison. It will also likely include community supervision as well as payments of fines and fees. In addition, an Order of Protection will likely be placed against you in favor of the child.

Prison

Reckless assault of a child is a Class D felony. The maximum possible sentence is 7 years in prison. N.Y. Pen. Law § 70.02. However, it is also classified as a violent felony. This means that the judge is required to impose a minimum sentence of 2 years in prison. The actual length of your prison sentence will depend on factors such as your prior criminal record. If you have not been convicted of a crime within the prior 10 years, you will be deemed to have no prior convictions. In that case, the minimum prison sentence that you will face is 2 years. If your status is that of a non-violent predicate offender, meaning that you have been convicted of a non-violent felony within the past 10 years, then the court will sentence you to at least 3 years for a reckless assault of a child conviction, while if you are a violent predicate offender you will be sentenced to at least 5 years in prison. If you have been convicted of a 2 or more felonies the minimum sentence you will receive is 12-25 years in prison and the maximum sentence is life in prison. N.Y. Pen. Law § 70.08. You will be required to serve 6/7 of your sentence before you will be eligible for release. Upon release you will be required to serve a term of post-release supervision.

Post-Release Supervision

If convicted of reckless assault of a child your sentence will also include a term of community supervision called post-release supervision. The length of your post-release supervisions will be 1.5-3 years. N.Y. Pen. Law § 70.45(e). The purpose of post-release supervision is to ensure that when you are released from prison, you experience a smooth re-integration into the community. Conditions will be placed on you to ensure this smooth re-integration and to help ensure that you do not reoffend:

  • You must not commit a crime
  • You must not hang around others have criminal records
  • You must not go to unlawful or disreputable places
  • You must not possess or use a controlled substance
  • You must submit to drug testing
  • You must attend a drug or alcohol education class
  • You must refrain from consuming alcohol
  • 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
  • If you move you must let your Parole Officer know of your new address
  • You must now possess a gun
  • You must stick to a curfew
  • You must have job or attend school

If you fail to follow the rules associated with your post-release supervision, you risk going back to prison.

Financial Consequences

Being convicted of reckless assault of a child will also have substantial financial consequences as you will likely be required to pay a fine, restitution and fees. If you fail to pay a fine, restitution, or fee you may be charged with a misdemeanor and sent to prison for up to a year, your wages may be garnished or a judgment may be obtained against you. However, if you cannot pay the judge may adjust the payment terms, lower the amount you must pay, or revoke the part of the sentencing requiring you to pay.

Fine. The law allows a judge to order you to pay a fine of up to $5000 as part of your sentence.

Restitution. Another financial consequence of a reckless assault of a child conviction is that you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. However, because the child's injuries would be so severe, the court may increase the amount to more than $15,000 to cover the child victim's medical expenses. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

Fees. Furthermore, you will be required to pay certain fees including a fee that is called a "mandatory surcharge" of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You will also have to pay a fee related to your post-release supervision of $30 per month.

Orders of Protection

As part of the criminal process, the assistant district attorney prosecuting your case may request and the judge may grant an Order of Protection in favor of the child victim requiring you to stay away from the child. The Order of Protection will be very specific about what you cannot do and what you must do. For example, the Order of Protection may state that you are not permitted to go near the victim and the victim's family. If you live with the victim, an exclusionary Order of Protection may be issued, requiring you to move. If you are the parent of the victim, you will be ordered to pay child support even though you are not permitted to have custody or visitation. If you violate an Order of Protection, you could face the additional criminal charge of criminal contempt. Thus, even if you believe that the Order of Protection is warranted because you feel that you did not commit the crime of reckless assault of a child, as long as the Order of Protection is in place, you must abide by it.

Criminal Record

After you have served your prison sentence, post-released supervision, fine, restitution and fees, there is another, long-term consequence to being convicted of reckless assault of a child. You will have a criminal record that will make several aspects of your life more challenging such as getting a job. In fact, you will be barred from working in certain professions such as being a nurse, security guard, home healthcare worker, teacher or a lawyer. If you are a child care provider you will lose your license. In addition, you will not be able to own a gun, serve in the military, or serve on juries. You will also not be able to receive certain government benefits such as welfare or federally funded housing.

Being arrested for reckless assault of a child is serious. If you are convicted, many aspects of your life may change forever. Not only will you end up in prison, but there will also be financial consequences. However, there may be defenses to a charge of reckless assault to a child that only an experienced practitioner will understand. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with reckless assault of a child 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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