Assault charges in nyc
There are numerous ways a skilled defense attorney can fight an assault case. The prosecutor has the burden to prove every element beyond a reasonable doubt. A powerful way to attack an assault claim is to attack each element necessary to establish the charge. The following questions are worth considering.
1. Can you establish that the witness is lying or has a reason to not tell the truth?
2. Is the witness lying about their injuries?
3. Can you claim self-defense?
4. Were you accurately identified?
5. Was there a suggestive lineup?
Assault in the third degree
Assault in the Third Degree is the least severe Assault charge in the New York Penal Law. It is found in Penal Law section 120. It should not be taken lightly since there is a potential sentence of 1 year in jail if found guilty. The District Attorney will have the burden of proving that you recklessly or intentionally caused physical injury to another person. Typically, when you are charged with Assault the Third Degree, you will also be charged with menacing and harassment and attempted assault. The DA adds these additional lesser charges, so they can use them in the event the to assault charge is dismissed.
The alleged victim or complaining witness will have to show that he or she suffered physical pain or physical impairment. Often times, the DA’s will accept the alleged victim's word that there were in pain even in cases where there is no concrete proof and the alleged victim did not seek any medical attention. If you are charged with assault, the Judge will almost certainly issue an order of protection against you requiring that you stay away from the alleged victim including his or her home or place of business. This can be a serious problem for clients who live or work in close proximity to the alleged victim. Our firm has been very successful in persuading Judges to change the order of protection to allow incidental contact. This can be the difference between being forced out of where you live or being able to stay put.
Assault in the second degree
Assault in the second degree is more severe than Assault in the Third Degree. If you are found guilty of Assault in the 2nd degree you could face up to 7 years in jail. Assault in the second degree is found in Penal Law Section 120.05. To establish a charge of assault in the second degree, the district attorney will have to establish that you intentionally or recklessly caused physical injury to another person. Additionally, the DA will need to establish that the injury was serious. Penal Law Section 10 defines serious physical injury as that which creates a substantial risk of death or causes protracted disfigurement, protracted impairment of health or protracted loss or impairment of any bodily organ. A minor cut or bruise typically does rise to the level of second degree assault but a broken bone normally does. You can also be charged with second degree assault even if the injury is not serious when you are charged with using a deadly weapon or dangerous instrument. These terms are defined very loosely and include many ordinary household objects. Like assault in the third degree, you will most certainly be the Judge will almost certainly issue an order of protection against you requiring that you stay away from the alleged victim including his or her home or place of business.
You can also be charged with Assault in the Second Degree when you’re the alleged victim is a government employee such a transit worker, NYC Bus Driver, firefighter or EMT.
Assault in the first degree
Assault in the first degree is the most severe assault charge. If you are found guilty of it, you could go to jail for 25 years. Assault in the 1st Degree is a B felony. There are several different variations of assault in the 1st Degree. The DA will need to prove that you either:
- Intentionally caused serious physical injury to another using a deadly weapon or dangerous instrument;
- Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person;
- In the course of and in furtherance of the commission or attempted commission of a felony or of immediate flight therefrom, he, or another participant if there be any, causes serious physical injury to a person other than one of the participants.