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New York Assault In The Third Degree

Assault is one of the most common criminal offenses. It involves one person intentionally or recklessly injuring another person. There are three types of assault. The least severe is assault in the third degree. It will be the charge you will face if you injure another person, but the injury is relatively minor. For example, if you throw a punch at another person causing that person to have a black eye or breaking that person's nose, the charge you are likely to face is assault in the third degree. Similarly, so-called bar fights and fights that occur at parties may result in assault in the third degree charges. Assault in the third degree is also a common crime related to domestic violence. It is a misdemeanor. This means that the longest prison sentence that you could receive if convicted is 1 year in jail. However, it is important to know that even a misdemeanor conviction can have a devastating effect on your future. Thus, if you are in need of a criminal lawyer because you have been charged you have been charged with assault in the third degree it is important that you speak with an experienced New York assault lawyer who will explain to your legal options and who will aggressively defend you against the charges. The attorneys at the Law Offices of Stephen Bilkis & Associates have decades of experience representing clients who have been charged with assault and other serious crimes such as domestic violence and sex crimes. Find out what we can do for you by contacting us to schedule a free, no obligation consultation regarding your case.

Definition of assault in the third degree

New York Penal Law includes 3 degrees of the crime of assault including assault in the assault in the first degree, second degree and third degree. Assault in the third degree is the least serious of the three offenses. It is a class A misdemeanor and carries a possible prison sentence of up to 1 year in jail. N.Y. Pen. Law § 120.00

You will face a change of assault in the third degree if:

  • You intentionally physically injure another person
  • You injure a third party when you intended to injure another person
  • You recklessly injure another person
  • You negligently injure another person using a deadly weapon or dangerous instrument.

A deadly weapon is defined 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. A dangerous instrument is defined as any instrument, article or substance that is capable of causing death or serious injury. A vehicle is one example of a dangerous instrument. N.Y. Pen. Law § 10.00(13).

Assault in the third degree is a common charge for when one person initiates a fight with another person, or one person "beats up" another person. In order to face this charge, the victim must suffer an injury that causes impairment or substantial pain. However, it is not necessary for the injury to be serious or life-threatening. In People v. Rose, 081314 NYAPP2, 2014-05809 (August 13, 2014), defendant Roosevelt Rose was charged with assault in the third degree after punching the victim in his face. In People v. Powell, 984 N.Y.S.2d 633 (2013) defendant Tory Powell was convicted of third degree assault after punching the victim in the face and back, requiring the victim to seek medical treatment at a hospital.

Defenses to an assault charge

Physical injury. In order to sustain a charge of assault in the third degree, the victim must have sustained a physical injury. While it is not necessary for the injury to be severe, there must be some evidence of an injury other than the victim complaining that he or she was hurt. For example, in People v. Rodriguez, 158 A.D.2d 376 (1990) the defendant was convicted of assault in the third degree based on punching the victim in the leg. However, on appeal the conviction was overturned. The court found that the only evidence of the severity of the injuries was the victim's testimony that that blows hurt "a lot" and photographs of some bruise. There was no other evidence of the after affects of the blows.

Self-defense. Under New York law you are permitted to use reasonable force to protect yourself or another person from imminent physical danger. N.Y. Pen. Law § 35.15. However, the court will not permit you to raise this defense if based on the facts of the case you could not have reasonably believed that you were in imminent physical danger. For example, in People v. Quiller, 902 N.Y.S.2d 770 (2010) defendant Fletcher Quiller was convicted of assault in the third degree. On appeal Quiller argued that the jury should have been instructed on the justification defense. The court disagreed. The facts clearly showed that Quiller was the aggressor. Had Quiller not started the fight there would not have been a fight and the victim would not have been injured.

Mistaken identity. Assault charges sometimes arise based on fights at parties, bars, and other places where there are many people. Oftentimes, the fights become melees in which many people are involved. In such cases it is not uncommon for a victim to identify the wrong person as the assailant.

Consequences of an assault in the third degree conviction Because assault in the third degree is a class A misdemeanor if convicted the maximum sentence is up to a year in jail. However, it is possible that the judge may not sentence you to jail and instead sentence you to probation. In addition, there will be financial consequences. You will be ordered to pay fees, a fine, and restitution.


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 do not receive in jail time, 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.


If you are convicted of assault in the third degree because it is a misdemeanor, the judge may opt to sentence you to no jail time but just probation. The mandatory probation term for misdemeanors is 3 years. For example, in the case of People v. Roppoccio, 924 N.Y.S.2d 311 (2011), defendant George Roppoccio was convicted of assault in the third degree based on punching the victim and biting the victim. Roppoccio was sentenced to 3 years probation. Likewise in People v. Gambetta, 822 N.Y.S.2d 450 (2006), the defendant Charles Gambetta received a sentence of 3 years of probation after being convicted of assault in the third degree based on throwing the victim on the floor.

There will be several rules that you must follow while you are on probation. N.Y. Pen. Law § 65.10. The rules associated with probation vary from person to person, but may include that:

  • You must not commit a crime
  • You cannot leave the State of New York without permission
  • You must consent to warrantless searches
  • You must not associate with people who you know have criminal records
  • You must not patronize unlawful or disreputable places
  • You must not possess a firearm
  • You must not possess a controlled substance or drug paraphernalia
  • You must refrain from consuming alcohol
  • You must undergo psychiatric treatment
  • You must complete an alcohol or substance abuse program
  • You must stick to a curfew
  • You must have job or attend school
  • You must submit to electronic monitoring
  • You must perform community service
  • You must notify your Probation Officer of a new address
  • You must regularly report to your Probation Officer

If you violate any of the terms of your probation, your Probation Officer may file a Violation of Probation with the court. You will then be required to appear before the judge who originally sentenced you to probation. That judge will listen to evidence and determine if you did indeed violate the terms of your probation. If the violation is minor such as failing to report to your probation officer of report a new address, then the judge may choose not to violate you. On the other hand if the violation is significant such as you committing another crime, the judge could revoke your probation and resentence you to jail.

Fines, fees and restitution

Your sentence may also include the payment of a fine of up to $1,000. If you are convicted of a crime in New York, you will be required to pay certain fees. For a misdemeanor conviction, you will have to pay a mandatory surcharge of $25-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay a probation supervision fee of $30 per week.

As part of your sentence you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses.

If you do not pay a fine, fee or restitution, you may be charged with a misdemeanor and sent to prison for up to a year, your wages may be garnished or the state of New York may obtain a judgment against you. The court may reduce the amount of the fees, fines and restitution you are required to pay, or change the payment terms based on your financial condition.

Orders of protection

As part of the criminal process, the prosecutor may request and the judge may grant a temporary order of protection against you in favor of the victim. An order of protection is designed to keep the victim safe by limiting your actions. The victim, also referred to as the complaining witness, will have told the prosecutor his or her side of story, giving details as to why a order of protection is necessary. Based on this information, the prosecutor will request that the judge issue a temporary order of protection with specific requirements. For example, the order of protection may be a "full" order meaning that you will be required to stay away from the victim, the victim's home, the victim's place of employment, and the victim's children. If you share a home with the victim, the order may also require you to move. A limited order will require you to refrain from harassing, threatening or abusing the victim. If warranted, the order may require you to attend a substance abuse program.

Depending on the outcome of the assault charges against you that form the basis for the order of protection, a permanent order of protection may be issued that may last from 2-8 years.

If you violate an order of protection, you could face additional criminal charges that could result in you going to prison. 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 dismissed.

Long-term consequences

Even though assault in the third degree is a misdemeanor and not a felony, it is still a crime. While your sentence may only be probation or just a few months in prison, once you are released you will have to live with having a criminal record which will negatively impact several aspects of your life. With a simple background check a potential employer or a college admissions officer will quickly learn that you were convicted of assault. As a result, many lose many opportunities.

Contact the Law Offices of Stephen Bilkis & Associates

While assault in the third degree is a misdemeanor, the consequences of a conviction are serious. You may end up spending a year in jail-- away from your family and friends. Once you return you will have to face life with having a criminal record. However, there are defenses to a charge of assault in the third degree that may cause the charge to be dropped, reduced or you being acquitted. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with misdemeanors and felonies such as assault in the first degree, assault in the second degree, menacing, reckless endangerment, stalking, rape, and child endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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