Assault in the third degree is one of several assault offenses defined in New York Penal Law. It is also one of the few assault offenses that is a misdemeanor and is one of the least serious assault crimes. This means that the penalty for being convicted of assault in the third degree is not as severe as the punishment for other assault crimes that are felonies. In fact, the longest prison sentence that you could receive if convicted of assault in the third degree is 1 year in jail. However, this does not mean that you should not take an assault in the third degree charge lightly. Although you may not face much if any jail time, there are other consequences of being convicted of assault in the third degree that can significantly impact your future. Thus, if you have been charged with assault in the third degree it is important that you speak with an experienced Suffolk County Assault in the Third Degree Lawyer who will explain to your legal options and who will aggressively defend you against the charges.
Assault involves one person intentionally or recklessly injuring another person. There are three types of assault. The least severe is assault in the third degree. It is a Class A misdemeanor and carries a possible prison sentence of up to 1 year in jail. N.Y. Pen. Law § 120.00
You will face a change of assault in the third degree if:
A deadly weapon is defined as a weapon that is readily able to cause death or a serious physical injury. N.Y. Pen. Law § 10.00(12). The criminal statute gives several examples of deadly weapons: a firearm, a knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles. A dangerous instrument is defined as any instrument, article or substance that is capable of causing death or serious injury. A vehicle is one example of a dangerous instrument. N.Y. Pen. Law § 10.00(13).
Assault in the third degree is a common charge for when one person initiates a fight with another person, or one person "beats up" another person. In order to face this charge, the victim must suffer an injury that causes impairment or substantial pain. However, it is not necessary for the injury to be serious or life-threatening. In People v. Rose, 081314 NYAPP2, 2014-05809 (August 13, 2014), defendant Roosevelt Rose was charged with assault in the third degree after punching the victim in his face. In People v. Powell, 984 N.Y.S.2d 633 (2013) defendant Tory Powell was convicted of third degree assault after punching the victim in the face and back, requiring the victim to seek medical treatment at a hospital.
Arrest and ArraignmentIf you are arrested and charged with assault in the third degree, the first step is that you will be taken to the local police precinct where initial processing will take place. After initial processing you will be taken to Central Booking where you will remain until your case is called for arraignment.
Arraignment is the first time that you will appear before a judge. At that time you will be formally charged. After reviewing the evidence and your personal background the prosecutor will decide whether to charge you with assault in the third degree or whether additional charges are warranted. Based on several factors include all of the criminal charges, your criminal history and your personal background, the prosecutor will make a recommendation to the judge regarding bail. Typically the prosecutor will argue for bail, while you will argue to be released on your own recognizance-- meaning no bail. The judge will listen to both your arguments as well as the prosecutor's arguments and decide whether to order you held without bail, to set bail, or to release you without bail.
After you are arraigned several things could happen. The prosecutor may offer you a "plea deal." With a plea deal you will agree to plead guilty to a lesser charge and as a result you will receive a less severe sentence than if you were found guilty to assault in the third degree. If you decide not accept a deal then your case will eventually go to trial and a judge or jury will find you guilty or not guilty.
Defenses to an Assault ChargePhysical Injury. In order to sustain a charge of assault in the third degree, the victim must have sustained a physical injury. While it is not necessary for the injury to be severe, there must be some evidence of an injury other than the victim complaining that he or she was hurt. For example, in People v. Rodriguez, 158 A.D.2d 376 (1990) the defendant was convicted of assault in the third degree based on punching the victim in the leg. However, on appeal the conviction was overturned. The court found that the only evidence of the severity of the injuries was the victim's testimony that that blows hurt "a lot" and photographs of some bruise. There was no other evidence of the after affects of the blows.
Self-Defense. Under New York law you are permitted to use reasonable force to protect yourself or another person from imminent physical danger. N.Y. Pen. Law § 35.15. However, the court will not permit you to raise this defense if based on the facts of the case you could not have reasonably believed that you were in imminent physical danger. For example, in People v. Quiller, 902 N.Y.S.2d 770 (2010) defendant Fletcher Quiller was convicted of assault in the third degree. On appeal Quiller argued that the jury should have been instructed on the justification defense. The court disagreed. The facts clearly showed that Quiller was the aggressor. Had Quiller not started the fight there would not have been a fight and the victim would not have been injured.
Consequences of an Assault in the Third Degree ConvictionBecause assault in the third degree is a Class A misdemeanor if convicted the maximum prison sentence is up to a year in jail. However, it is possible that the judge may not sentence you to jail and instead sentence you to probation. Regardless of whether or not you are sent to jail there will be financial consequences. You will be ordered to pay fees, a fine, and restitution.
JailAssault in the third degree is a Class A misdemeanor. The maximum possible sentence is up to 1 year in jail. N.Y. Pen. Law § 70.02. While those convicted of misdemeanors often are not sentenced to jail if you have a prior criminal history jail is likely to be part of your sentence. In People v. Hick, 924 N.Y.S.2d 311 (2010) defendant Simon Hick pleaded guilty to assault in the third degree based on throwing his son from a porch, resulting in a broken bone and dislocated joint. While Hick could have received a probation sentence, because of Hick's long, violent criminal history, the prosecutor and the court felt that a sentence of 120 days in jail was appropriate.
ProbationIf you are convicted of assault in the third degree because it is a misdemeanor, the judge may opt to sentence you to no jail time but just probation. The mandatory probation term for misdemeanors is 3 years. For example, in the case of People v. Roppoccio, 924 N.Y.S.2d 311 (2011), defendant George Roppoccio was convicted of assault in the third degree based on punching the victim and biting the victim. Roppoccio was sentenced to 3 years probation.
Because probation is a type of community supervision it with a number of rules and restrictions that you will be required to follow or risk being sent to prison. N.Y. Pen. Law § 65.10. The rules are that you must:
N.Y. Pen. Law § 65.10
If you violate any of the terms of your probation, your Probation Officer may file a Violation of Probation with the court. You will then be required to appear before the judge who originally sentenced you to probation. That judge will listen to evidence and determine if you did indeed violate the terms of your probation. If the violation is minor such as failing to report to your Probation Officer of report a new address, then the judge may choose not to violate you. On the other hand if the violation is significant such as you committing another crime, the judge could revoke your probation and resentence you to jail.
Fines and RestitutionYour sentence may also include the payment of a fine of up to $1,000. Furthermore, you may be required to pay restitution to your victim. Generally, the maximum amount of restitution for a misdemeanor is $10,000. However, the court may increase the amount to more than $10,000 to cover the amount of the victim's medical expenses. If you can show that you do not have the means to pay a fine or restitution, you can request that the court reduce the amount or change the payment terms. However, if you fail to pay there are severe consequences such as being in violation of probation or wage garnishment.
FeesIf you are convicted of a crime in New York, you will be required to pay certain fees. For a misdemeanor conviction you will have to pay a mandatory surcharge of $175 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If you are placed on probation there will be additional fees that you must pay.
Orders of ProtectionIf you are charged with assault in the third degree the prosecutor will request an order of protection for the victim, also referred to as the complaining witness. The judge will decide whether the circumstances warrant an Order of Protection. If once is issued, then the judge will also determine the terms and conditions will be included in the order. If you are released on bail or on your own recognizance, abiding by the Order of Protection will be a condition of your release.
The Order of Protection may be a "full" order meaning that you will be required to stay away from the victim, the victim's home, the victim's place of employment, and the victim's children. If you share a home with the victim, the order may also require you to move. A limited order will require you to refrain from harassing, threatening or abusing the victim.
Depending on the outcome of the assault charges against you that form the basis for the Order of Protection, a Permanent Order of Protection may be issued that may last from 2-8 years.
If you violate an Order of Protection, you could be charged with criminal contempt and sent to prison.
Criminal Record. Even though assault in the third degree is a misdemeanor and not a felony, it is still a crime. While your sentence may only be probation or just a few months in prison, once you are released you will have to live with having a criminal record which will negatively impact several aspects of your life. With a simple background check a potential employer or a college admissions officer will quickly learn that you were convicted of assault. As a result, you may lose career opportunities. A criminal record is likely to prevent you from pursuing a career in the military, childcare, education, security, nursing, and home healthcare. In addition, there are schools that will deny you admission if you have a criminal record.
Even though assault in the third degree is a misdemeanor, if you are convicted there will be serious consequences. You may have to spend time in jail as well as face significant financial consequences. Furthermore you will have a permanent criminal record. However, there are defenses to a charge of assault in the third degree that may cause the charge to be dropped, reduced or you being acquitted. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with assault in the third degree as well as other misdemeanors and felonies such as assault in the first degree, assault in the second degree, menacing, reckless endangerment, stalking, rape, and child endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of assault in the following locations: