New York Assault Attorney
“Assault” covers a range of crimes in New York, many of which are called battery in other states. New York Assault charges range from misdemeanors to serious felonies, depending upon a variety of factors.
Misdemeanor Assault in New York
Assault in the Third Degree is the basic misdemeanor adult charge in New York. This class A misdemeanor is punishable by up to 1 year in jail. A person is guilty of Assault in the Third Degree when he or she:
- With intent to cause physical injury to another person, causes such injury to such person or to a third person; or
- Recklessly causes physical injury to another person.
If that definition raises questions in your mind, you’re not alone. What exactly does “physical injury” mean? What constitutes “recklessly?”
There is one additional type of misdemeanor Assault, but it is one that’s rarely charged. Physical injury by means of a deadly weapon or dangerous instrument is a misdemeanor if the injury occurred as the result of criminal negligence rather than intentionally.
Depending upon the facts of the case and the defendant’s history, it may be possible to negotiate a plea bargain to a violation rather than a crime, or to arrange for an Adjournment in Contemplation of Dismissal (ACD). In fact, under some circumstances it is possible to have the case dismissed entirely. The facts of every case are unique.
Harassment in the Second Degree
Harassment in the Second Degree is often charged along with Assault in the Third Degree. The most common form of Harassment in the Second Degree involves physical contact such as a kick or shove. But unlike Assault, Harassment in the Second Degree does not require physical injury.
Harassment in the Second Degree is a violation and not a crime, and any conviction will ultimately be sealed, unless the case is classified as Domestic Violence. Where Domestic Violence is involved, the conviction may only be sealed with the consent of the District Attorney.
Another type of Harassment in the Second Degree involves following a person in public and behaving in such a way as to cause annoyance or alarm.
Felony Assault in New York
While there are only three situations in which misdemeanor Assault is charged in New York, there are many types of felony Assault.
Assault in the Second Degree
In New York, Assault in the Second Degree is a class D violent felony. Some of the most common forms of Assault in the Second Degree include:
- Causing serious physical injury;
- Causing physical injury with a deadly weapon or dangerous instrument;
- Causing physical injury to an MTA employee;
- Recklessly causing serious physical injury with a weapon;
- Causing physical impairment by giving another person a drug without his or her consent;
- Causing physical injury during the commission of a felony;
- A person at least 18 years of age recklessly causing serious physical injury a person younger than 11; or
- A person at least 18 years of age intentionally causing physical injury to a person younger than 11
For purposes of the New York Assault statutes, “serious physical injury” means:
- A substantial risk of death;
- Protracted disfigurements;
- Protracted impairment of health; or
- Protracted impairment of the function of a bodily organ
A class D violent felony carries a minimum 2-year prison sentence for a first-time felony offender, and may mean a maximum of 7 years in prison.
Assault in the First Degree
The most common types of Assault in the First Degree include causing serious physical injury with a weapon or during the commission of a felony. The charge may also arise from intentionally and permanently disfiguring a person or engaging in reckless behavior that creates a grave risk.
Assault in the First Degree is a class B violent felony, carrying a mandatory minimum prison sentence of 5 years for a first offender and a maximum sentence of up to 25 years.
Felony Assault Sentencing
A variety of factors impact the outcome of a felony Assault charge, including:
- The strength or weakness of the prosecution’s case;
- The defendant’s criminal history;
- The extent of the injury; and
- The facts of the Assault
Thus, the possible outcomes range from dismissal or a plea bargain to a misdemeanor charge all the way up to several years in prison.
Orders of Protection in New York Assault Cases
When an Assault case involves Domestic Violence or the defendant and victim know one another, the District Attorney will typically request an Order of Protection. This Order of Protection will usually remain in effect as long as the case is pending, and will prohibit contact and communication of any kind (including via social media) with the protected party or parties. In most cases, an Order of Protection will be part of the final disposition of the case and will last for a period of years thereafter.
Assault and Hate Crimes in New York
A wide range of crimes, including Assault, may be “aggravated” if the motivation is a hate crime. In this context, “aggravate” means to bump up the classification of the crime. So, Assault in the Third Degree, which is a class A misdemeanor, becomes a class E felony when classified as a hate crime. Assault in the Second Degree, which is a class D felony, becomes a class C felony, and so on. The bump up in classification carries with it an increase in the possible sentence.
What is a Hate Crime in NYC?
An Assault or other crime will be charged as a hate crime when there is evidence that the act was committed because of a belief about the victim’s race, color, national origin, ancestry, gender, religion, religious practice age, disability or sexual orientation. Note that it does not matter whether or not that belief is accurate: a defendant who Assaults a Middle Eastern person on the assumption that he is Muslim will be guilty of a hate crime even if it turns out that his victim was actually Christian or Hindu. Likewise, an Assault triggered by a rumor that the victim is gay will still constitute a hate crime no matter the sexual orientation of the victim.
Defenses to Assault Charges in New York
The most significant defense to an Assault charge in New York is known as “justification.” Justification basically means “self defense,” but also includes the defense of another person. Justification is an affirmative defense, which means that the defense must raise the issue and prevail by a preponderance of the evidence. In contrast to the high standard of the prosecution’s burden of proof beyond a reasonable doubt, preponderance of the evidence means only 51%. In fact, when justification is a credible defense, a skilled defense attorney may be able to get a case dismissed before trial and an especially favorable disposition short of dismissal.
However, there are limitations on of justification. For example, if the defendant was the initial aggressor in an altercation, he or she typically cannot claim justification in defending himself or herself against an attack that was initiated. Likewise, there are limitations on the circumstances in which a person may use deadly force, even if he or she is first attacked.