New York Assault on a Police Officer

New York Assault on a Police Officer Lawyer

While any type of assault is a serious crime, law enforcement considers assaulting a police officer as a particularly egregious offense. You will be charged with a violent felony, meaning that you will go to prison for a minimum of 2 years and up to life. Probation will not be an option. Because police officers have dangerous jobs and are charged with protecting the public, prosecutors will aggressively seek to charge and convict anyone accused of injuring a police officer while the officer is trying to do his or her job. However, prosecutors do not always get it right. Police are sometimes wrong and sometimes misinterpret a situation. Police do not always perform their duties according to procedure, resulting in an innocuous situation becoming violent. There are 3 different assault charges related to assaulting a police officer. If you are convicted of any one of them in addition to having to spend time in prison you will also have to face additional consequences after you are released from prison such as being subject to post-release supervision restrictions and having a criminal record. However, there are defenses to an assault on a police officer charge that may result in the charges being dropped or reduced. Thus, if you are in need of a criminal lawyer because you have been charged with assault on a police officer it is important that you immediately contact an experienced New York Assault on a Police Officer Lawyer who will listen to the facts of your case and explain to you your legal options. 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, DWI, grand larceny, and sex crimes. Find out what we can do for you by contacting us to schedule a free, no obligation consultation regarding your case.

There are three different felony assault offenses related to injuring a police officer: assault in the second degree, assault on a police officer, and aggravated assault on a police officer.

1. Assault in the second degree. Assault in the second degree is the least serious assault on a police officer offense. However, it is still a felony. You will face this charge if you assault a police officer in order to prevent that officer from performing his or her duties and cause physical injury. N.Y. Pen. Law § 120.05. . It is a class D felony. Physical injury means an injury that causes a physical impairment or substantial physical pain. N.Y. Pen. Law § 10.00(9) . In People. v. Harley, 905 N.Y.S.2d 617 (2010) defendant Linda Harley was convicted of assault in the second degree based on hitting a police officer's hands with a club auto-theft device. The officer was in the process of attempting to unlock Harley's car door after she committed several traffic violations.

2. Assault on a police officer. You will have committed this crime if with intent to prevent a police officer from performing his or her lawful duty, you cause that police officer serious physical injury. N.Y. Pen. Law § 120.08. A serious physical injury is an injury that creates a substantial risk of death, causes death, causes protracted disfigurement or impairment of health, or causes loss of a bodily organ. N.Y. Pen. Law § 10.00(10). Assault on a police officer is a class C felony. For example, in People v. Hurdle, 965 N.Y.S.2d 626 (2013), defendant Walter Hurdle was convicted of assault on a police officer based on having intentionally hit a police officer with an SUV, causing the police officer to suffer severe injuries. However, on appeal the conviction was overturned because when the police stopped Hurdle they did not do so for a lawful reason. The requirement that the police officer must have been in the process of performing his lawful duty was not met.

3. Aggravated assault upon a police officer or a peace officer. You would have committed this offense if you intentionally seriously injure a police officer who was attempting to perform his official duties. You must have used a deadly weapon or dangerous instrument to commit the assault. N.Y. Pen. Law § 120.11. It is a class B felony. New York's criminal statute gives several examples of what is considered a dangerous weapon: means any loaded weapon from which a shot may be discharged, a knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles. N.Y. Pen. Law § 10.00(12). A dangerous instrument is defined as anything 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). However, there are many other things that may be considered a deadly weapon or dangerous instrument. In People v. Plunkett, 907 N.Y.S.2d 919 (2010) the defendant was convicted of aggravated assault upon a police officer based on being HIV positive and biting a police officer who was attempting to arrest him.

Type of Injury. To be convicted of assault on a police officer, the injury cannot be slight. For a second degree assault charge based on assaulting a police officer the injury must cause the victim substantial pain or physical impairment. For assault on a police officer or aggravated assault upon a police officer the injury must be serious- presenting a substantial risk of death. If the injury is not as serious as the statute requires, then you have a valid defense to an assault on a police officer charge.

Lawful duty. In order to be convicted of an assault of a police officer offense, you must have assaulted the officer while that officer was attempting to perform his or her lawful duties. For example, in People v. Hurdle, the defendant was ultimately acquitted of the charge of assault on a police officer because despite the fact that the defendant did assault the police officer. The police officer had not stopped and questioned the defendant based on lawful police procedure. However, even if the facts do not support a conviction of assault on a police officer, you may still be found guilty of another assault offense.

If you are convicted of assault on a police officer your sentence will include prison, payment of fines, fees, and restitution, and post-release supervision.

The actual length of your prison sentence will depend not only on the offense of which you are convicted but also on your prior criminal record. Based on your criminal record, you will be labeled as follows:

• Prior convictions: Prior convictions include felony convictions within the last 10 years.
• Non-violent predicate: A non-violent felony conviction within the last 10 years.
• Violent predicate: A violent felony conviction within the last 10 years.
• Persistent felony offender: At least 2 prior felony convictions.

Assault in the second degree is a 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. Your sentence will be determinate, meaning that it will be a set period of years and not a range of years. Even if you have no prior convictions 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. Part of your sentence will also include a term of post-release supervision.

Assault on a police officer is a class C felony. The maximum possible sentence is 15 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 3 1/2 years in prison. Even if you have no prior convictions, then the minimum prison sentence you will receive is 3 1/2 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 the court will sentence you to at least 5 years for an assault in the second degree conviction, while if you are a violent predicate offender, you will be sentenced to at least 7 years in prison. If you are a persistent felony offender 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 from prison you will have to serve a term of post-release supervision.

Aggravated assault upon a police officer is a class B felony. The maximum possible sentence is 25 years in prison. N.Y. Pen. Law § 70.02. Because aggravated assault upon a police officer is classified as a violent felony, the judge is required to impose a minimum sentence of 5 years. Even if you have no prior convictions then the minimum sentence you will receive is 5 years in prison. If your status is that of a non-violent predicate offender, then the court will sentence you to at least 8 years, 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. If you are released you will have to serve a term of post-release supervision.

Because all assault on a police officer offenses are violent felonies, if you are convicted of any such offense part of your sentence will also include a term of post-release supervision of 1.5-5 years. N.Y. Pen. Law § 70.45. There will be several rules that you must follow while you are on post-release supervision. Such rules vary from person to person based on what the Department of Corrections determines is needed to ensure a smooth, crime-free transition from prison back into the community. Common rules are that you will not be permitted to associate with others who have criminal records, go to unlawful places, or use controlled substances. You will be required to have a job or go to school, stick to a curfew, and report to you parole officer regularly. You will have to let you parole officer know if you change address and get permission to leave the state.

If you violate any of the terms of your post-release supervision you will receive a revocation hearing. Based on the evidence presented, the outcome of such a hearing may be that your post-release supervision status is undisturbed, you will be required to go back to jail for a period and then back on post-release supervision status, or you may be required to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Being convicted of assault also can have substantial financial consequences as you will likely be required to pay a fine, fees and restitution. For a felony assault on a police officer conviction in addition to being sentenced to prison you may also be required to pay a fine of up to $5,000. 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 may also be required to pay a monthly fee related to post-release supervision of $30 per month.

Another financial consequence of an assault in the second degree conviction is that 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. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

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. 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.

Even if you are sentenced to just the minimum prison sentence there will be consequences of being convicted of assault on a police officer that will last for years after you are released from prison, complete your post-release supervision and pay fees, fines and restitution. 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 teacher or a lawyer. 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. If you are not a citizen of the United States federal law may require that you be deported.

Being arrested for assault on a police officer is very serious. If you are convicted you will be incarcerated for multiple years, have to pay fines and have a criminal record. However, there may be defenses to a charge of assault on a police officer that only an experienced practitioner will understand. Thus, if you have been arrested for assault in the second degree, assault on a police officer, or aggravated assault upon a police officer it is important to immediately contact someone who is familiar with the New York criminal court system. 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.