Home to millions and a must-visit locale for travelers from around the world, New York City maintains strict laws to ensure the safety and security of her citizens and visitors. New York’s dedication to maintaining law and order is reflected in her criminal code, which errs fiercely on the side of victims—particularly when it comes to violent crimes and/or harassment. Consequently, assault accusations are thoroughly investigated and zealously prosecuted, with convicted assailants facing harsh consequences that are sure to affect every aspect of their lives—now and in the future.
If you’re facing an accusation of assault or other crimes, don’t wait to get legal counsel. Even minor allegations of assault can sometimes be charged and prosecuted as felonies depending on the circumstances surrounding the incident. The Law Offices of Ali Najmi will evaluate the facts of your case and mount an aggressive, proactive defense to protect your freedom.
Types of Assault Charges in New York
The legal meanings of the terms “assault,” “battery,” and even “assault and battery” listed together vary from state to state, but the general guidelines for the laws remain consistent. New York City generally defines assault as intentionally causing an injury to another. There are different degrees of assault and the alleged circumstances around the incident determine which charge applies.
The intent of the subject is a factor in how the state categorizes assault. When there appears to be no intent to harm, law enforcement officers and prosecutors may categorize the incident as negligence or reckless. Part of your legal preparation should include understanding the differences between the crimes and their legal classification. Employ the assistance of an assault attorney in New York who can compose an appropriate defense strategy for the circumstances of your case.
Assault In The Third Degree (PL §120.00) – What to Know
Assault in the Third Degree is New York’s simple assault statute, and the most basic form of chargeable assault. If somone engages in fight with their hands and causes an injury (not a serious injury) then the charges are misdemeanor-level and punishable by fines and up to one year of jail time.
Elements of Simple Assault
In order to prove simple assault, the prosecuting attorney must show that the following elements were present:
Intent to cause physical injury
Proving simple assault is contingent upon demonstrating the intent to cause injury. If it can be shown the physical contact was voluntary and intentional, this fact along with any other words or actions leadng up to the assault can be used to satisfy this element.
The severity of injuries can affect the level of assault that will be charged. Assault in the Third Degree is limited to a regular injury, however, New York Law distinguishes “serious injuries” and the existence of a “serious injury” can lead to Felony charges. Often times the best defense to an Assault charge is arguing that despite any intentional conduct, there was no injury suffered. Without an injury the intentional physical contact would then only be conisdered a violation charge of Harassment (PL 240.26), which is less than a Misdemeanor and would not lead to a criminal record.
The presence of aggravating factors during an assault can increase the severity of the charges. In New York, Assault charges can be elevated to a Felony when one or more of the following aggravating factors exists:
- Severity of harm inflicted – a “serious injury” such as a gun shot, scar, broken bones.
- Hate crimes
- Victim Identity – Police officers, judges, EMTs, fire fighters, sanitation workers, etc.
- Repeat offenses
- Age of the victim – If the victim is a child or a senior citizen
Involving a Deadly Weapon or Instrument
Felony assault may also involve the use of weapons or dangerous instruments. New York defines a dangerous instrument as any instrument having the potential to induce death or serious injury. A weapon or dangerous instrument will increase the assault charges and upgrade the classification of the crime to Felony Assault, either in the Second or First Degrees depending on other factors.
Assault in the First Degree – Penal Law §120.10
One of the following conditions must be met for assault in the first degree to apply:
- There’s intent to cause serious physical injury to another by means of a weapon or deadly instrument.
- There’s intent to seriously or permanently disfigure another person, or to destroy, amputate, or permanently disable a member or organ.
- There is a depraved indifference to human life by a subject exhibiting behavior that puts another’s life at risk, and the subject injures the victim as a result of that behavior.
- The subject is committing a felony and seriously injures another person during the commission of that crime.
Assault in the first degree is classified as a Class B felony.
Assault in the Second Degree – Penal Law § 120.05
A person is guilty of assault in the second degree when there is intent to cause serious physical injury to another person. This charge also covers situations where the intent or causing harm with a weapon or dangerous instrument.
Assault in the second degree is charged as a class D felony crime in New York.
Special Circumstances – Assault Involving the Elderly, Minors, and Police
When the victim of an assault is a minor, an elderly person, or a law enforcement officer, the potential penalties increase. Any assault perpetrated on minors, the elderly, or a LEO may automatically be classified as assault in the second degree.
Second-Degree Vehicular Assault
Vehicular assault in the second degree refers to circumstances where an actor employs the use of a motorized vehicle to inflict serious physical injury to another. The injuries resulting from a vehicle may be from the vehicle itself, or from any dangerous cargo that may cause injury. Assault charges will increase if the driver involved was intoxicated or otherwise impaired by drugs or alcohol at the time. Vehicular assault in the second degree is classified as a Class E felony.
First-Degree Vehicular Assault
Vehicular assault in the first degree involves certain factors of first-degree assault where a motor vehicle is involved. A driver with an elevated blood alcohol content, who does not hold a driver’s license, may have charges upgraded from second-degree to first-degree vehicular assault. And likewise, a driver who has involved a child in a vehicular assault incident will have charges raised from second-degree to first-degree vehicular assault. Additionally, prior convictions accrue, leading to more severe charges and penalties. First-degree vehicular assault is categorized as a Class D felony.
Vehicular Assault with Priors
Prior charges for vehicular assault accrue, which escalates consequences. If a person has been convicted of vehicular assault within the previous ten years, the charges may be upgraded from second-degree to first. Perpetual violations are considered an aggravating factor.
Aggravated Vehicular Assault
Aggravated vehicular assault is the highest chargeable level of this crime. Aggravating factors include alcohol or drug use and any prior convictions. Serious injuries that occur as a direct result of aggravating factors lead to increased associated charges. Aggravated vehicular assault is classified as a Class C felony.
Gang Assault Charges
Second-Degree Gang Assault
Gang assault in the second degree involves intent to cause injury or actually causing injury to a victim. When the aggressor is aided by two or more people in the facilitation of the crime, it’s considered a gang assault. Second-degree gang assault is classified as a Class C felony.
First-Degree Gang Assault
First-degree gang assault follows the same definition as second-degree assault, but raises the level of the penalty depending on the severity or the threats or injuries. The charges are categorized as a Class B felony.
New York Assault vs Battery Charges
Other states classify assault and battery as being two different crimes. In these states, battery charges involve intentional, offensive touching of another person without consent. Assault involves intent to harm, but without successfully carrying out an attack. The state of New York, however, doesn’t use the term “battery” in the criminal code and uses the term “assault” to cover both.
Counts of Menacing in New York
A person is guilty of menacing in the second degree when one of the following occurs:
- The suspect places the victim in reasonable fear of physical injury or death by displaying a deadly weapon or any instrument that appears to be a firearm.
- The suspect follows or engages a person and places them in reasonable fear of injury or death.
- The suspect violates a restraining order.
Third-degree menacing involves causing a victim to believe that there is intent to harm. A person is guilty of menacing when they are shown to have placed another in fear of physical injury. Menacing of the third degree is categorized as a Class B misdemeanor.
A conviction of menacing in the second degree requires the prosecution to show that the accused placed a victim in fear of injury or death by displaying a weapon or apparent firearm , or followed that person and placed them in fear of injury or death. Committing menacing of the third degree while under a restraining order results in second degree charges. Second-degree menacing also can occur when a suspect menaces a police officer or peace officer and knows or should have known that the officer was in the lawful performance of their position. Second-degree menacing is categorized as a Class A misdemeanor.
A conviction of second-degree menacing within the previous ten years may result in menacing of the first-degree charges. Menacing in the first degree is categorized as a Class E felony.
Stalking Laws in NYC
Stalking charges are a result of a person intentionally causing a victim distress. A victim must feel fear or have their emotional health threatened; material harm may also be grounds for charges. Stalking charges may be based on the grounds that the aggressor’s actions will damage their business. Stalking in the fourth degree is categorized as a Class B misdemeanor.
Stalking in the third degree is defined as the harassment of multiple victims. Third-degree stalking can result from repeated fourth-degree stalking attempts when a restraining order exists. Repeated fourth-degree stalking charges in the previous ten years can be upgraded to third-degree stalking. Stalking in the third degree is categorized as a Class A misdemeanor.
A person is guilty of stalking in the second degree when a weapon is used to facilitate the assault. When a person commits stalking in the third degree repeatedly within five years, the charges can be increased to second-degree, as well.
Stalking charges elevate to the first degree when the victim is intentionally or recklessly injured. Stalking in the first degree may also involve a person additionally committing a Class A misdemeanor, or a Class E felony. Stalking in the first degree is categorized as a Class D felony.
Self-Defense Standards in New York
In some situations, self-defense is considered to be a possible legal defense by the state of New York during assault cases. Individuals have the right to defend themselves, but there are limits to the amount of force permitted. Under most circumstances, individuals are legally able to defend themselves in their homes without retreating. Outside the home, however, there is often a legal obligation to retreat. Each instance is different, but use of deadly force is generally considered a last resort in any situation.
Proving Self-Defense in a Court of Law
Because of the nature of assault crimes, it’s often difficult for police officers to determine who’s responsible for the initial outbreak of violence. Most assault cases involve the testimony of at least two individuals: the accused and the victim. Without clear evidence, the police stand the risk of arresting an alleged attacker who was just trying to defend themselves.
Law enforcement officers will often look to the injuries of the parties involved to try to determine who the victim is, but that’s not always a reliable indicator. An individual who’s been attacked can still come out ahead in a fight in terms of injuries. Just because someone is bleeding or has swelling doesn’t mean that they didn’t start the fight. New York criminal defense lawyers will often look to other sources of evidence to assist in clearing their clients from assault charges.
When police officers are faced with conflicting testimony, they’ll try to gather information from anyone who witnessed the fight. There are two significant problems with this type of eye-witness testimonial. Many people become witnesses after the fight has started because the conflict is what draws their attention to the action. Also, in many assault situations, the witnesses are somehow connected to one part or another and are unable to be objective. However, an independent witness—one not connected to either party—who watched the attack develop from the beginning, can provide invaluable perspective when it comes to determining who the aggressor was.
Surveillance or Cellphone Video Footage
There are cameras everywhere these days. Even in the absence of surveillance cameras, witnesses will often take out their cellphones and start recording. When there are questions about who the attacker in an assault case was, a video can often provide the missing piece of information. In one newsworthy case, Mr. Najmi used security footage from a local business to show the court that his client was actually the victim of a brutal hate crime. The charges against the client were immediately dropped.
One of the ways that a criminal defense lawyer can help to create doubt about a client’s responsibility is to show that the accuser’s testimony is inconsistent with the injuries or marks. For instance, an alleged victim who claims to have been strangled, should have marks or redness around the neck. An absence of physical signs of an attack can create doubt about the veracity of the victim’s account.
Self-defense is only one of the approaches a veteran defense lawyer can use to beat a criminal assault charge in New York. It’s not a viable strategy in all cases, but when it does apply, it can be a very direct way to get your charges dropped.
Felony vs. Misdemeanor Crimes
Assault charges vary by degree, and it is important to know the difference between felony and misdemeanor penalties. Misdemeanor infractions are less serious and warrant more manageable punishments. Felony charges are much more serious, leading to prison time and much higher fines. It’s important to remember that both levels of charges will appear on your criminal history.
New York Felony Class Crime Definitions
Under New York law, a the way that a felony level assault can vary based on the circumstances around the charges issued. Felonies in New York carry potential prison sentences—as opposed to jail time—and heavy fines. Each class of assault carries with it different levels of exposure to sentences and fines.
Class E – The Lowest Level Felony
A non-violent Class E felony has a minimum sixteen-month prison sentence, with a maximum time of four years. A violent Class E felony has a minimum prison sentence of a year and a half, with a maximum sentence of four years. Probation may be available in both non-violent and violent Class E cases.
Class D – Felony with Potential for Probation
A non-violent Class D felony has a minimum sentence of a year in prison. The charge has a maximum sentence of seven years, with a chance for probation. A violent Class D felony has a minimum sentence of two years and a maximum of seven years. No probation is available for violent Class D cases.
Class C – One-Year Minimum, Fifteen-Year Maximum Prison Sentence
A non-violent Class C felony has a minimum year-long sentence in prison. The maximum sentence for these charges is fifteen years with a chance for probation. A violent Class D felony can come with a sentence of between three to fifteen years with no chance for probation.
Class B – Risk of Possible Decades Long Prison Sentence
A non-violent Class B felony can lead to a one to 25-year long prison sentence. A violent Class B felony has a minimum of five years to a maximum of a 25-year sentence. Neither version has an option for probation.
Class A – The Highest Level of Felony
Class A felonies are punishable by twenty-years to life in prison, whether the charges are of a violent nature or not.
Misdemeanor Class Crime Definitions
Misdemeanors result in less severe punishments than felonies. The crimes do still result in consequences for one’s record and lifestyle. Apart from certain fines, the charges also come with possible jail time.
Violation Definition – The Lightest Punishment Possible
A violation conviction is the least punishable conviction, and a violation is not considered a “crime” that goes on a criminal record. A “violation” is less than a Misdemeanor. The jail sentence imposed cannot exceed fifteen days.
Class B Misdemeanor Definition – Fines and Fees
A Class B misdemeanor may come with fines, and the jail sentence cannot exceed three months.
Class A Misdemeanor- Jail Sentencing
A Class A misdemeanor is the final degree misdemeanor before a crime is categorized as a felony. The jail sentence cannot extend past a year, and other charges may be added, depending on the circumstances surrounding the crime.
The Law Offices of Ali Najmi is an Assault Defense Law Firm Serving Clients in New York City and the Surrounding Areas
New York City sees thousands of assault cases on a yearly basis. Assault charges are serious accusations and could leave you in danger of harsh punishments that last a lifetime. A conviction in court brings fines, incarceration, and penalties that will alter all aspects of your life. A criminal defense assault lawyer can represent you in court and work towards the most agreeable outcome possible based on the unique circumstances of your case. Call now for free consultation from a top-tier New York assault lawyer.