New York Assault With A Gun

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. However, assault with a gun is considered one of the most serious assault charges because the use of a gun increases the likelihood of serious injury or death to another person. 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 significant fines, fees, and restitution. Thus, if you are in need of a criminal lawyer because you have been charged with assaulting someone with a gun it is important that you immediately contact an experienced New York assault with a gun 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.

An assault with a gun 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, and assault in the third degree. There are many types of weapons that are commonly called guns or firearms such as a pistol, revolver, rifle, shotgun, machine gun or an electronic stun gun.

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 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. 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. Forde, 080614 NYAPP2, 2014-05650 (August 6, 2014) defendant Andre Forde was convicted of assault in the first degree based on shooting a gun at an individual on a basketball court, hitting 3 other people. Although his intent was not to injure those 3 people, he still faced the assault in the first degree charge because his reckless conduct resulted in the serious injuries of 3rd parties.

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 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. Criminal negligence is defined as engaging in conduct that grossly deviates from the standard of care that a reasonable person would use in that situation. N.Y. Pen. Law § 15.05(4)

Extent of injury. To sustain any assault with a gun charge, at a minimum the victim must experience a "physical injury." As a physical injury is defined as an impairment of physical condition or substantial pain, any gunshot wound would likely qualify. This would be enough for an assault in the third degree. Other assault crimes such as assault in the first or 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 more than a relatively minor "flesh wound." The injury must be so severe that the there was a good possibility that the victim could have died or suffered 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.

For example, in People v. Tran, 729 N.Y.S.2d 851 (2001), the defendant Ricky Tran was convicted of assault in the first degree based shooting the victim in the arm. The victim's wound was treated at the hospital and he was released. At trial the victim showed a slight scar left by the bullet. On appeal the court concluded that even though Tran did indeed shoot the victim that was not enough to sustain a charge of assault in the first degree. There must be some evidence of disfiguration, amputation or of a disabling injury to the victim.

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. For example, in People v. Fermin, 828 N.Y.S.2d 546 (2007), the defendant was convicted of assault in the first degree after having shot the victim. On appeal, however, the court set aside the conviction noting that because the victim approached the defendant with a gun the defendant may have been justified in shooting the victim based on self-defense.

Whether you go to jail or prison for an assault with a gun conviction depends on 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 gun, you will be sentenced to prison. The actual length of your prison sentence will depend on factors such as your prior criminal record.

• 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

  - Non-violent predicate: Minimum 3 years in prison

  - Violent predicate: Minimum 5 years in prison

  - 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

  - Non-violent predicate: Minimum 8 years in prison

  - Violent predicate: Minimum 10 years in prison

  - Persistent felony offender: Minimum 20-15 years in prison; maximum life

For assault with a gun 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.

If convicted of a felony assault offense based on using a gun, because such a felony offense is a also a violent felony 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, there may be specific rules applied to your post-release supervision to help 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 disreputable people
• 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 Parole Officer
• You must regularly report to your 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 post-release supervision, you will have to appear before a judge at a revocation hearing. After hearing evidence, 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.

In addition to having to pay a fine of up to $1,000 for a misdemeanor assault with a gun conviction or up to $5,000 for a felony conviction, you will be required to pay certain fees including 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 parole supervision fees of $30 per month.

Another financial consequence of an assault with a gun conviction is that you may be ordered to pay restitution to the victim. Generally, the maximum amount of restitution is $15,000. However, the restitution may be considerably more as medical expenses for gunshot wounds can be significant and the court may require you to pay those expenses. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

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.

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 gun 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.

If you are arrested for shooting someone, assault with a gun will likely not be the only criminal charge you face. Depending on the facts of your case, you may also be charged with criminal possession of a weapon, burglary, robbery, sexual assault, manslaughter, or homicide. Any additional charge could result in an addition conviction. You will receive an additional sentence based on the additional conviction.

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 or a lawyer. 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.

Being arrested for assault with a gun 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 with a gun 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 gun, it is important to immediately contact someone who 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 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of assault in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.