New York Assault with a Deadly Weapon Lawyer
Assault is the crime of intentionally or recklessly causing physical injury to another person. There are many ways that an assault can be accomplished. For example, you could assault someone by punching them, shooting them, biting, stabbing them, or hitting them with a vehicle. Some of the most vicious assaults occur when a deadly weapon is used. When we think of deadly weapon, guns and knives commonly come to mind. However, for purpose of the assault statute, a deadly weapon can refer to almost any object that when use causes serious injuries. Because assault with a deadly weapon, sometimes referred to as aggravated assault, usually leaves the victim with painful and permanent physical injuries, the consequences of an assault with a deadly weapon conviction are harsh. You could end up spending years in prison and paying significant fines, fees, and restitution. Thus, if you are in need of a criminal lawyer because you have been charged with assaulting someone using a deadly weapon it is important that you immediately contact an experienced New York Assault with a Deadly Weapon Lawyer who will review the facts of your case and aggressively defend you until your case is resolved. 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.Assault with a deadly weapon charges
An assault with a deadly weapon charge can be any one of a number of different types of assault charges including assault in the first degree , assault in the second degree, assault in the third degree, and reckless endangerment in the first degree. In order for any assault to be considered assault with a deadly weapon, a deadly weapon must be used to carry out the assault. New York criminal law defines a deadly weapon 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.
Assault in the first degree . You will face a change of assault in the first degree if with intent to cause serious physical injury you seriously injure another person with a deadly weapon. 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. As it is one of the most serious assault offenses, assault in the first degree is a class B felony. For example, in People v. Johnson, 967 N.Y.S.2d 217 (2013) defendant Andrea Johnson was convicted of assault in the first degree based on assaulting the victim in such a manner that seriously injured the victim's face. Johnson used a knife or a blade during her attack on the victim.
Assault in the second degree. Assault in the second degree with a deadly weapon is similar to assault in the first degree with a deadly weapon. 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 deadly weapon crime. It is a class A misdemeanor. You will face this crime if with criminal negligence you cause physical injury to another using a deadly weapon. N.Y. Pen. Law § 120.00
Reckless endangerment in the first degree . You will face a charge of reckless endangerment if with depraved indifference to human life, you engage in conduct which creates a grave risk of death to another. It is a class D felony. N.Y. Pen. Law § 120.25. While the statute does not define "grave indifference to human life" New York courts have interpreted it. In People v. Suarez, 811 N.Y.S.2d 267 (2005), the court defined it to mean an "utter disregard for the value of human life" and "a willingness to act not because one intends to harm, but because one simply doesn't care whether grievous harm results or not.Defenses to an assault charge
Extent of injury. To sustain any assault charge, at a minimum the victim must experience a "physical injury." Physical injury is defined as an impairment of physical condition or substantial pain. This means that the injury to the victim must be more than minor. If the victim experiences some discomfort and brief bruising that does not leave a scar or require hospital treatment, the prosecutor will have a difficult time proving the crime of assault. Other assault crimes such as assault in the second degree require that the victim sustain a serious physical injury. This means that the prosecutor's evidence must clearly show that the victim suffered injuries that were so severe that the there was a good possibility that the victim might die or suffer an extended physical impairment. N.Y. Pen. Law § 10.00(10). If you can show that the victim's injuries were actually not that severe, then you may have a valid defense to assault in the second degree charges.
Self-defense. New York has a "justification" statute that allows you to use physical force against another person to protect yourself from imminent harm. N.Y. Pen. Law § 35.15. Thus, if the reason that you injured the other person is because you were protecting yourself from that person, then you may have a valid defense to an assault charge. However, to use the justification defense, the other person had to have initiated the violence and not you. In addition, you cannot use more force than is reasonably necessary to protect yourself.Consequences of an assault conviction
Whether you go to jail or prison for an assault with a deadly weapon conviction depends the specific charge of which you are convicted. 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 deadly weapon, you are likely to be sentenced to prison. The actual length of your prison sentence will depend on factors such as your prior criminal record. Your criminal history will place you in one of the following categories:
- 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.
In addition, there will be financial consequences in the form of fines, fees, and restitution.
- Class A misdemeanor. The maximum possible sentence is 1 year in jail and a fine of up to $1,000.
- Class D felony. The maximum possible sentence is 7 years in prison and a fine of up to $5,000.
- No prior convictions: Minimum 2 years in prison; maximum 7 years
- Non-violent predicate: Minimum 3 years in prison; maximum 7 years
- Violent predicate: Minimum 5 years in prison; maximum 7 years
- Persistent felony offender: Minimum 12-15 years in prison; maximum life
- Class B felony. The maximum possible sentence is 25 years in prison and a fine of up to $5,000.
- No prior convictions: Minimum 5 years in prison; maximum 25 years
- Non-violent predicate: Minimum 8 years in prison; maximum 25 years
- Violent predicate: Minimum 10 years in prison; maximum 25 years
- Persistent felony offender: Minimum 20-15 years in prison; maximum life
For assault with a deadly weapon offenses that are class B or class D violent felonies, you will be required to serve 6/7 of your sentence before you will be eligible for release.Post-release supervision
If convicted of a felony assault with a deadly weapon offense, part of your sentence will include a term of post-release supervision of 1.5-3 years for a class D felony and 2.5-5 years for a class B felony. N.Y. Pen. Law § 70.45(2)(e). There will be several rules that you must follow while you are on post-release supervision. While certain rules will apply to all on post-release supervision, Department of Corrections may require specific rules to your post-release supervision that it deems necessary to ensure a smooth, crime-free transition from prison back into the community. Such rules may include that:
- You must not commit a crime
- You must not associate with other people who you know have criminal records
- You must not patronize unlawful or disreputable places
- You must not possess a controlled substance or drug paraphernalia
- You must submit to drug testing
- 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
- You must now own, possess or purchase a gun
- You must refrain from consuming alcohol
- You must stick to a curfew
- You must have job or be enrolled in school
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.Fines, fees and restitution
In addition to having to pay a fine of up to $1,000 for a assault with a deadly weapon conviction or up to $5,000 for a felony conviction, you will be required to pay certain fees including a misdemeanor “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 parole supervision fees 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.
Failure to pay and ordered 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, if you let the court know that you do not have the means to pay, the judge may adjust the payment terms, lower the amount you are required to pay, or revoke the part of your sentence that requires you to pay.Orders of protection
As part of the criminal process, the judge may grant a temporary order of protection in favor of the victim. An order of protection is a court order requiring you to stay away from another person or requiring you to stop harassing or threatening another person. Such orders are usually very specific about what you cannot do and what you must do. For example, an order of protection may state that you are not permitted to go near the victim, the victim's children or the victim's place of employment. 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 deadly weapon charges against you, the temporary order of protection may become a permanent order of protection, meaning that it may remain in place for a number of years. 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 vacated.Long-term consequences
Even if you are convicted of a misdemeanor assault with a deadly weapon 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 or a lawyer. In addition, you will not be able to own a gun, 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.Contact the Law Offices of Stephen Bilkis & Associates
Being arrested for assault with a deadly weapon is serious. If you are convicted, in addition to being sent to prison, many other aspects of your life may change forever. However, there may be defenses to a charge of assault in the second degree that only an experienced practitioner will understand and be able to apply to your case. Thus, if you have been arrested for assault with a deadly weapon, it is important to immediately contact someone understands the New York criminal 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 1-800-NY-NY-LAW (1-800-696-9529) 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.