Westchester County Domestic Violence and Assault with a Gun

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

If you shoot and injure another person with a gun, you would have committed the crime of assault. If the victim is also your husband, wife, girlfriend, boyfriend, roommate or someone with you share children, then your crime would also be classified as domestic violence. While there are many different ways that you can assault someone, if you use a gun the assault is considered as a much more serious crime. In fact it is considered one of the most serious assault charges because the use of a gun increases the likelihood of life-threatening injury to the victim or a third party. Because assault with a gun usually leaves the victim with painful and permanent physical injuries the consequences of an assault with a gun conviction are harsh. You could end up spending years in prison and paying substantial fines, fees, and restitution. However, just because you have been arrested for assault with a gun does not mean that you will be convicted. Depending on the facts of your case there may be strategies that can be used to get the charges against you dropped, to get the charges reduced, or that will help you to be acquitted. Thus, if you have been charged with domestic violence based on assaulting someone with a gun it is important that you immediately contact an experienced Westchester County Domestic Violence and 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

There is no one charge in the New York criminal code called "assault with a gun." Instead, if you use a gun during the commission of an assault you will be charged with either assault in the first degree, assault in the second degree, or assault in the third degree. There are many types of weapons that most people simply call guns such as a pistol, revolver, rifle, shotgun, machine gun or an electronic stun gun. If during an act of domestic violence you use a gun and injure another person, you will face very serious charges that could land you in prison for years.

Assault in the first degree. You will face a change of assault in the first degree if you seriously injure another person or a third person with a deadly weapon such as a gun. 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. It is a Class B felony. For example, in the case of People v. Rabideau, 918 N.Y.S.2d 247 (2011) defendant Brenda Rabideau was convicted of assault in the first degree based on shooting her husband with a rifle.

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.

Assault in the third degree. Assault in the third degree is the least serious assault with a gun crime. It is also referred to as criminally negligent assault. 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. No intent is required. Criminal negligence is defined as engaging in conduct that significantly deviates from the standard of care that a reasonable person would use in that situation. N.Y. Pen. Law § 15.05(4)

Arrest and Arraignment

If the police suspect that you have committed an assault using a gun you will be arrested and taken to the local police precinct. At the local precinct your personal information will be taken and you will be fingerprinted. Then you will be taken to Central Booking where you will remain until your arraignment. Within approximately 24 hours of your arrest you will be arraigned.

At your arraignment the assistant district attorney will present a criminal complaint that will list the exact charges against you. Based on a review of the evidence the assistant district attorney assigned to your case may decide to raise or lower the charge, or to add additional charges. Depending on the facts of your case, you may also be charged with criminal possession of a weapon, reckless endangerment, child endangerment, sexual assault, manslaughter, or homicide.

At your arraignment you will also learn whether or not bail will be required. While you were waiting to be arraigned, you were interviewed by a representative from the Criminal Justice Agency (CJA). The judge uses the report from the CJA to help decide what to do about bail. The judge can set a dollar amount for bail. The judge can choose to remand you, meaning that you will have to remain in jail while you await trial. Or the judge can release you without requiring bail.

At some point your case may be resolved through plea-bargaining. You and the assistant district attorney may arrive at a mutually satisfactory compromise that would require you to plead guilty to a lesser crime that would result in a lighter than if you were found guilty of the original assault charge after a trial. Any agreement that you come to with the assistant district attorney is subject to the approval of the judge.

Orders of Protection

If you are charged with assaulting someone you are in a domestic relationship with, early in the case the judge may issue an Order of Protection against you. The Order of Protection will be very specific as to what you can and cannot do. For example, it may require you to stay away from the victim's home, school, or place of business. This means that 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 gun charges against you, the Temporary Order of Protection may become a Final Order of Protection, meaning that it may remain in place for up to 8 years.

Consequences of an Assault Conviction

Prison. Whether you are incarcerated for an assault with a gun conviction depends on the specific charge of which you are convicted, your criminal record, and the specific facts of your case. 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. In addition, if you have a criminal record that includes at least 1 prior felony conviction within the past 10 years, you will receive a harsher sentence than if you had no prior convictions.

  • Assault in the third degree. 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 based on throwing his son from a porch, resulting in a broken bone and dislocated joint. 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.
  • Assault in the second degree. Class D felony. The maximum possible sentence is 7 years in prison. N.Y. Pen. Law § 70.02. Because assault in the second degree is also classified as a violent felony, the judge is required to impose a minimum sentence of 2 years in prison. Even if you have no prior convictions, then 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. Upon release you will be required to serve a term of post-release supervision.
  • Assault in the first degree. 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 classified as a violent felony, the judge is required to impose a minimum sentence of 5 years. The length of your prison sentence will depend on factors such as your prior criminal record. You will be classified based on your prior criminal record. Even if you have no prior convictions then the minimum sentence you will receive is 5 years in prison. 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 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. For example, in People v. Miller, 062014 NYAPP4, 2014-04641 (June 20, 2014), defendant Damien Miller was convicted of assault in the first degree. Because he was also convicted of burglary in the second degree Miller was sentenced as a predicate violent offender for the first degree assault conviction. He was sentenced to 15 years in prison.
Fines, Fees and restitution

There are several financial consequences to committing a domestic violence related crime. The judge may order you to pay a fine of up to $1,000 for a misdemeanor conviction or up to $5,000 for a felony conviction.

You will also be required to pay certain fees including a "mandatory surcharge" of $300 for felonies and $175 for misdemeanors as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If you are convicted of a sex crime then there are additional fees, including a sex offender registration fee. You may also be required to pay fees related to probation and post-release supervision of $30 per month.

Another financial consequence is that you may be ordered to pay restitution to the victim. Generally, the maximum amount of restitution is $15,000 for felonies and $10,000 for misdemeanors. However, the restitution may be considerably more as medical expenses for knife wounds can be significant and the court may require you to pay those expenses.

Failure to pay a 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, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Probation and Post-Release Supervision

if you are convicted of domestic violence and assault with a gun part of your sentence will include probation or post-release supervision of between 1.5-5 years. There will be several rules that you must follow while you are on probation or post-release supervision such as:

  • You must not commit a crime
  • You must not associate with people who have felony criminal records
  • You must not patronize unlawful or disreputable places
  • You must not used controlled substances
  • You must submit to drug testing
  • You must consent to warrantless searches
  • You must submit to home visits by your Probation or Parole Officer
  • You must regularly report to your Probation or Parole Officer
  • You cannot leave the State of New York without permission
  • You must not purchase, own, possess a gun
  • You must not consume alcohol
  • You must follow a curfew
  • You must have job or be enrolled in school

If you violate any of the terms of your probation or post-release supervision, you will have to appear before a judge at a revocation hearing. If after hearing evidence the judge concludes that you are in violation the judge could sent you to prison.

Long-Term 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 teacher, lawyer, or security guard. 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.

There are many emotions that accompany being accused of domestic violence. In many cases not only is your freedom at risk, but your relationship with members of your family may also be at risk. However, it is important to understand that even though you have been arrested, there may be a variety of ways to reach a favorable resolution 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 and who also understands the intricacies of domestic violence cases. 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. Furthermore, we also represent clients fighting Orders of Protection. 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:

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