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Nassau County Domestic Violence and Assault With a Knife

N.Y. Pen. Law §§ 120.00, 120.05 & 120.10

Assault is one of the most common criminal offenses in New York and one of the most common criminal offenses associated with domestic violence. An assault is also classified as an act of domestic violence in cases where the defendant and the victim are in an intimate relationship. Examples of intimate relationships include people who are married, dating, have children together, or live together. While many different weapons may be used during an assault, a knife is one of the most dangerous weapons that can be used to assault another person. A knife could easily damage a vital organ, cause the victim to lose a great deal of blood, or could result in permanent disfiguration. Because of the seriousness of assaulting you wife, girlfriend or any other person with a knife, if you are convicted the consequences are harsh. You could end up spending years in prison and paying significant fines, fees, and restitution. You will also end up with a permanent criminal record. However, there may be defenses to a charge of assault with a knife that could results in the charges being reduced or dropped, or in you being acquitted. Thus, if you have been charged with assaulting someone with a knife during a domestic dispute it is important that you immediately contact an experienced Nassau County Domestic Violence and Assault with a Knife Lawyer who will explain to you your legal rights and aggressively defend you until your case is resolved.

Assault with a knife charges

An assault charge related to the use of a knife can be any one of a number of different types of assault charges including assault in the first degree, assault in the second degree, and assault in the third degree. According to New York Penal Law a knife is considered a deadly weapon. N.Y. Pen. Law § 10.00(12). There several different types of knife specifically mentioned in the criminal statute including a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, box cutter and dagger. If you use any type of knife while assaulting someone and you injure that person, the assault is likely to result in a serious charge as using a knife will show your intent to cause injury. In addition, the use of knife is more likely to cause the victim serious injuries and permanent disfiguration.

Assault in the first degree. You will face a change of assault in the first degree if with intent to cause serious physical injury if you seriously injure another person, including someone with whom you have a domestic relationship, or a third person with a deadly weapon such as a knife. Or if with indifference to human life you engage in reckless conduct that results in the death or injury of another person. N.Y. Pen. Law § 120.10. As it is one of the most serious assault offenses, assault in the first degree is a Class B felony.

Assault in the second degree. Assault in the second degree with a knife is similar to assault in the first degree with a knife. The difference is that with second degree assault, you intend to injure another person, while with first degree assault your intent is to seriously injure another person. N.Y. Pen. Law §§ 120.05 and 120.10. Assault in the second degree is a Class D felony. For example, in People v. Turnquest, 938 N.Y.S.2d 749 (2012), defendant Chet Turnquest was indicted on a number of various domestic offenses including assault in the second degree. Turnquest was accused of repeatedly hitting his wife and pushing her from a moving vehicle.

Assault in the third degree. Assault in the third degree is the least serious assault with a knife crime. It is a Class A misdemeanor. You will face this crime if with criminal negligence you cause physical injury to another using a knife. N.Y. Pen. Law § 120.00. Criminal negligence is defined as engaging in conduct that grossly deviates from the standard of care that a reasonable person would use in that situation. N.Y. Pen. Law § 15.05(4)

Defenses to an Assault Charge

Extent of Injury. To sustain any domestic violence assault with a knife charge, at a minimum the victim must experience a "physical injury." As a physical injury is defined by New York Penal law as an impairment of physical condition or substantial pain, most knife wounds would likely qualify. At a minimum a knife wound would be enough for an assault in the third degree. Other assault crimes such as assault in the first or second degree require that the victim sustain a serious physical injury. This means that the prosecutor's evidence must clearly show that the victim suffered more than a slight prick with the knife or a flesh wound. The injury must be so severe that the there was a good possibility that the victim could have died or suffered an extended physical impairment. N.Y. Pen. Law § 10.00(10). While a knife could cause deep lacerations, permanent disfiguration or injury to vital organs, if you can show that the victim's injuries were actually not that severe, then you may have a valid defense to assault in the first or second degree charges.

Self-Defense. New York has a "justification" statute that allows you to use physical force against another person to protect yourself from imminent harm. N.Y. Pen. Law § 35.15. This type of defense is commonly referred to as self-defense and is often used in domestic violence assault cases. If the reason that you used a knife to injure the other person is because you were protecting yourself or a third party such as a child, then you may have a valid defense to an assault charge with a knife. However, to use the justification defense the other person had to have initiated the violence and not you. In addition, you cannot use more force than is reasonably necessary to protect yourself. For example, if your much smaller girlfriend shoved you, it would not be appropriate to defend yourself by stabbing her with a knife. Furthermore, if you had the opportunity to retreat but instead you used a knife, the court may not be swayed by the justification defense.

Consequences of an Assault Conviction

Whether you go to jail or prison for an assault with a knife conviction depends on the specific charge of which you are convicted. A conviction for misdemeanor third degree assault with a knife will result in a far less severe sentence than a conviction for felony first degree assault with a knife. While if you are convicted of third degree assault with a knife you may avoid prison, in most cases for a conviction of assault with a knife you will end up going to prison for at least 2 years. The actual length of your prison sentence will depend on factors such as your prior criminal record. For purposes of sentencing, you will be considered to have a prior conviction if you have been convicted of a felony within the prior 10 years. If your prior conviction was a non-violent felony, you will be considered a non-violent predicate felony offender. If your prior conviction was a violent felony offender, you will be considered a violent predicate felony offender. If you have at least 2 prior felony convictions you will be classified as a persistent felony offender. If you have a prior felony conviction, your sentence will be impacted.

In addition, there will be financial consequences in the form of fines, fees, and restitution.

  • Class A misdemeanor. The maximum possible sentence is 1 year in jail and a fine of up to $1,000. Your sentence may also include a probation term of 3 years.
  • Class D felony. The maximum possible sentence is 7 years in prison and a fine of up to $5,000.
    • No prior convictions: Minimum 2 years in prison
    • Non-violent predicate: Minimum 3 years in prison
    • Violent predicate: Minimum 5 years in prison
    • Persistent felony offender: Minimum 12-15 years in prison; maximum life
  • Class B felony. The maximum possible sentence is 25 years in prison and a fine of up to $5,000.
    • No prior convictions: Minimum 5 years in prison
    • Non-violent predicate: Minimum 8 years in prison
    • Violent predicate: Minimum 10 years in prison
    • Persistent felony offender: Minimum 20-15 years in prison; maximum life

For example, in People v. Abdul-Khaliq, after being convicted of first degree assault with a knife, because the defendant was a second time felony offender, the court sentenced him to 15 years prison.

Post-Release Supervision

If convicted of a felony assault offense based on using a knife, because such an offense is a also a violent felony part of your sentence will include a term of post-release supervision of 1.5-3 years for a Class D felony and 2.5-5 years for a Class B felony. N.Y. Pen. Law § 70.45(2)(e). For example, in People v. Taylor, 986 N.Y.S.2d 711 (2014) in addition to being sentenced to 7 years in prison the defendant was also sentenced to 3 years of post-release supervision.

There will be several rules that you must follow while you are on post-release supervision, called the conditions of post-release supervision. While certain rules will apply to all on post-release supervision, there may be specific rules applied to your post-release supervision to help ensure a smooth, crime-free transition from prison back into the community. The general conditions are:

  • You must go directly to the area to which you have been released
  • Within 24 hours you must report to the Division of Parole
  • You must report to your Parole Officer regularly
  • You must submit to home visits and searches by your Parole Officer
  • You must submit to visits by your Parole Officer at your job
  • You cannot leave the State of New York without permission
  • You must let your Parole Officer know if you change residences or change jobs
  • You must respond promptly and truthfully to any inquiries from your Parole Officer
  • You must inform your Parole Officer if you are arrested or contacted by law enforcement
  • You must not associate with people who you know to have criminal records
  • You must not break the law or do anything to threaten the safety of others
  • You cannot own, possess, or purchase a shotgun, rifle, any other type of firearm, dangerous knife or any other type of deadly weapon
  • You must not use or possess drug paraphernalia or any controlled substance

If you violate any of the conditions of your post-release supervision, you will have to appear before a judge at a revocation hearing. The judge will decide whether to allow you to continue with the post-release supervision with the terms undisturbed, to change the terms of your post-release supervision, to send you back to jail for a period and then allow you to return to post-release supervision, or to require you to return to prison to serve time for violating your post-release supervision.

Financial consequences

In addition to having to pay a fine of up to $1,000 for a misdemeanor assault with a knife conviction or up to $5,000 for a felony conviction, you will be required to pay certain fees including a "mandatory surcharge" of $175-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay parole supervision fees of $30 per month.

Another financial consequence of an assault with a knife conviction is that you may be ordered to pay restitution to the victim. Generally, the maximum amount of restitution is $10,000 for misdemeanors and $15,000 for felonies. However, the restitution may be considerably more as medical expenses for knife wounds can be significant and the court may require you to pay those expenses.

Failure to pay a fine, fee or restitution may result in your being charged with a misdemeanor and sent to prison for up to a year, your wages being garnished or a judgment being filed against you. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Orders of Protection

If you are charged with criminal assault, it is routine for the prosecutor to request that the judge issue a Temporary Order of Protection against you in favor of the complaining witness. The complaining witness is the victim. This is particularly the case where the victim is in a domestic relationship with the defendant. An Order of Protection is a legally enforceable order issued by the court that forbids you from engaging in certain behavior. For example, an Order of Protection can forbid a person from having any contact with the victim. This means that you will not be permitted to go to the victim’s home, place of employment, or school, or contact that person via email, phone, text or any other electronic means. The Order of Protection will also order you not to assault, threaten, harass, or stalk the victim.

A Temporary Order of Protection usually lasts until the next court date when it can be extended. Depending on the outcome of the assault with a knife case a final or permanent Order of Protection will be issued at the end of the case. A final Order of Protection can last from one year to several years. If the case is dismissed the Order of Protection will end.

Long-Term Consequences

Even if you are convicted of only a misdemeanor assault with a knife charge and receive a sentence that includes little or no jail time, there will be additional consequences. You will have a criminal record that will impact many aspects of your life. For example, you will be barred from working in certain professions such as being a teacher or a lawyer. In addition, you will no longer to be able to own a gun, serve in the military, or serve on juries. Some colleges may refuse admission or ban you from living on campus. You will also not be able to receive certain government benefits such as welfare or federally funded housing. Furthermore, a felony conviction may affect your custody and visitation arrangement with your children particularly if the domestic violence occurred in the presence of your children, or if you were also charged with child endangerment. If you are not a U.S. citizen, under federal law you may be subject to deportation.

Being arrested for using a knife to commit an act of domestic violence is very serious. If you are convicted you will probably end up in prison for a long time. You will also have to pay fines, fees and restitution. You have a criminal record for the rest of your life. Indeed, many aspects of your life will change forever. However, there may be defenses to an assault with a knife charge that could result in you not being convicted. However, only an experienced practitioner would be able to understand how to successfully apply defenses. If you have been arrested for domestic violence involving assault with a knife, contact Stephen Bilkis & Associates, PLLC. 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 with a knife, as well as clients charged with other crimes related to domestic violence such as menacing, reckless endangerment, stalking, sexual assault, and child endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case.

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