An individual arrested for striking another person in NY is often charged with assault. There are many different varieties of assault charges, including:
- Assault in the third degree
- Assault in the second degree
- Assault in the first degree
- Vehicular assault in the second degree
- Vehicular assault in the first degree
The prosecutors decide which charges to apply based on a variety of factors including the extent of the injury, the motivation for the attack, and whether a weapon was used. Usually an individual facing an assault charge will also be charged with attempted assault, menacing or harassment. These additional charges are lesser charges, which will not increase your sentence, but are included to convict you of a lesser offense if the prosecutor fails to prove the top charge.
Many attorneys will be quick to encourage you to take a plea, but make sure you know all the facts before you do. Often times a guilty plea will carry long lasting consequences such as criminal record or order of protection. The attorneys at the Law Offices of Adam Perlmutter get all the facts before making a recommendation.
In New York, the crime of assault in the second degree is found in NY Penal Law § 120.05. Assault in the second degree is a class D felony, which is punishable by up to 7 years in prison. There are three general factors which rase an assault from an assault in the third degree to an assault in the second degree: Serious Injuries, weapons used, or an official, elderly or minor victim. The presence of any one of these factors will raise an assault to an assault in the second degree. The presence of more than one of these factors will lead to more serious charges.
Assault in the second degree can be charged where “serious physical injuries” resulted from the assault, and the assault was carried out with the intent of causing such injuries. The law defines “serious physical injuries” as “a physical injury which creates a substantial risk of death, or which causes death or serious protracted disfigurement, protracted impairment of health or protracted loss or impairment of any bodily organ.” (Penal Law § 10.00(10)). A cut or bruise would not qualify as a serious physical injury, but a broken bone would.
Assault in the second degree can also be charged where a “deadly weapon” or “dangerous instrument” is used. A dangerous instrument is defined broadly at Penal Law § 10.00(13) to include any object that could be used to cause serious physical injury. The use of the object does not need to actually cause a “serious physical injury.” If a person intends to cause a physical injury and causes even a minor physical injury with a weapon, they are guilty of second degree assault.
Official, Elderly or Minor Victim
NY Penal Law § 120.05 states that the assault of an official is a second degree assault where the assault on that official intends to prevent him from performing his lawful duty. The list of officials includes police, emts, firefighters, and train operators. The full list is found at Penal Law § 120.05(3) and (11). Assault on a victim younger than 11 or older than 65 may qualify as second degree assault. Causing serious physical injury to such a person will result in more serious charges.
The NY crime of Assault in the third degree is found in NY Penal Law § 120.00. A person is guilty of assault in the third degree where he intentionally or recklessly causes injury to another person, or if he is criminally negligent with a weapon.
Assault in the third degree is the top charge when there are only minor injuries, weapons are not used, and the victim does not fall into a special protected category. Street fights between strangers are typically charged as assault in the third degree. Commonly, assault in the third degree is charged with menacing, harassment, and an attempt to assault. These are the lesser charges can be used to prosecute you if the top charge is dismissed.
Assault in the third degree is an A misdemeanor, meaning that it is punishable by up to one year in jail, as per Penal Law §§ 60.01(3)(a) and 70.15(1). In NYC, however, a first arrest for assault in the third degree will usually not result in any jail time.
Fine, Surcharge and Restitution
A fine of up to $1,000 may also be imposed, pursuant to Penal Law §§ 60.01(2)(c), 60.01(3)(b), 60.01(3)(c), and 80.05. A mandatory surcharge of $175 ($180 outside of NYC) and a crime victim assistance fee of $25 must be paid, pursuant to Penal Law §§ 60.35(1)(a)(ii), 60.35(6), and 60.35(9). A court may also order restitution be paid to the victim.
Orders of Protection
While not technically a penalty, it is important to realize that a plea or conviction to an assault will almost always come with an order of protection against the complaining witness.
How to Fight Your Case
Every case is different, but many assault cases require care examination of the following issues:
- Is the complaining witness being truthful or do they have a reason to lie?
- Was the complaining witness really injured?
- What started this fight?
- Was the alleged assailant properly identified?
An experienced attorney can key in on the most important issue to your case and use it to get you the best possible resolution.