New York Assault Attorney
The term “Assault” covers a range of crimes in New York, many of which are called battery in other states. New York Assault charges range from serious felonies to misdemeanors, depending upon a variety of factors. Retaining an experienced assault lawyer in NYC early on is essential in reaching a favorable outcome.
In addition to Assault-related crimes, there are 3 degrees of Assault in New York: Assault in the First Degree, Assault in the Second Degree and Assault in the Third Degree. The only misdemeanor assault charge in New York is Assault in the Third Degree, which requires an intent to cause physical injury to another person and causing a physical injury to that person or to a third party. The First and Second Degree Assault crimes are felonies and such charges usually involve a serious physical injury, a weapon or the complaining witness is in a class of people like a public transportation employee.
Felony Assault Lawyer NYC
While there are only three situations in New York where misdemeanor Assault is charged, there are many types of felony Assault.
Assault in the Second Degree in New York
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
When an Assault case involves Domestic Violence or if the defendant and complaining witness know one another, the District Attorney will typically request an Order of Protection at arraignment. 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.
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 complaining witness’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 person of Middle Eastern ancestry on the assumption that he or she is Muslim will be guilty of a hate crime even if it turns out that the complaining witness was actually Christian or Hindu or even agnostic. Likewise, an Assault triggered by a rumor that the complaining witness is gay will still constitute a hate crime no matter the sexual orientation of the complaining witness.
Defenses to Felony 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, called a third party. 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 persuade a prosecutor to dismiss a case before trial or to offer a favorable disposition or plea bargain that may fall 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.