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Queens Assault in the Third Degree

N.Y. Pen. Law § 120.00

Under New York Penal Law assault is defined as intentionally, recklessly or with criminal negligence causing physical injury to another person. There are several degrees of seriousness to the crime of assault: assault in the first degree, assault in the second degree and assault in the third degree. The least severe charge is assault in the third degree. It is also the most common assault charge. You will be charged with assault in the third degree if you assault another person, but the injury that person suffers is not serious. For example, if you punch someone and that person suffers a black eye, the charge you are likely to face is assault in the third degree. It is a misdemeanor. This means that at most you will spend 1 year in jail. However, it is important to know that even a misdemeanor conviction can have a long-term effect on your future. Thus, if you have been charged with assault in the third degree it is important that you speak with an experienced Queens Assault in the Third Degree Lawyer who will explain your legal options and who will aggressively defend you against the charges.

Definition of Assault in the Third Degree

Whether it is bar fight, a fight on the basketball court, or a fight with your girlfriend, if you physically injure another person you could be charged with assault in the third degree. Under New York law assault is defined as intentionally physically injuring another person, injuring a third party when you intended to injure another person, recklessly injuring another person, or negligently injuring another person with a deadly weapon or dangerous instrument.

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. N.Y. Pen. Law § 10.00(13).

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, permanent or life-threatening. For example 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 Arraignment

If you are arrested for assault in the third degree the arresting officer will take you to the local police precinct where you will be fingerprinted and photographed. Not too long after you are arrested you will be arraigned. At your arraignment you will learn the exact charges against you. In some cases the charges will be different from what you expected. Based on a review of the evidence and your background, the prosecutor may decide to raise or lower the charges, or to add additional charges. At your arraignment you will also learn whether or not bail will be required.

Defenses to an Assault Charge

Physical 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.

Mistaken Identity. Assault charges sometimes are based on fights at parties, bars, nightclubs and other places where there are many people. On occasion such fights become melees in which many people are involved. In such cases it is not uncommon for a victim to identify the wrong person as the assailant.

Consequences of an Assault in the Third Degree Conviction

Because assault in the third degree is a Class A misdemeanor if convicted the maximum 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. In addition, there will be financial consequences. You will be ordered to pay fees, a fine, and restitution.

Jail. Assault 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 do not receive any jail time, 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. While Hick could have received a probation sentence, because of Hick's long criminal history, the prosecutor and the court felt that a sentence of 120 days in jail was appropriate.

Probation. Because assault in the third degree is a misdemeanor there is a good chance that your sentence will include a 3 year probation term. In fact, if this is your first offense, the judge may choose to place you on probation in lieu of sending you to jail. While probation is preferable to incarceration you should be aware that there will be several rules that go along with probation and you will be closely supervised by the Department of Probation. Some of the conditions place on you will include that:

  • You must not commit a crime
  • You cannot leave the State of New York without permission
  • You must consent to warrantless searches
  • You must not associate with people who you know have criminal records
  • You must not patronize unlawful or disreputable places
  • You must not possess a firearm
  • You must not possess a controlled substance or drug paraphernalia
  • You must refrain from consuming alcohol
  • You must undergo psychiatric treatment
  • You must complete an alcohol or substance abuse program
  • You must stick to a curfew
  • You must have job or attend school
  • You must submit to electronic monitoring
  • You must perform community service
  • You must notify your Probation Officer of a new address
  • You must regularly report to your Probation Officer

N.Y. Pen. Law § 65.10.

If you violate any of the terms of your probation the judge could revoke your probation and resentence you to jail.

Fines, Fees and Restitution. Your sentence may also include the payment of a fine of up to $1,000. If 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 $25-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay a probation supervision fee of $30 per week.

As part of your sentence you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $10,000 for a misdemeanor offense. However, the law gives a judge the authority to increase the amount to more than $10,000 to cover the amount of the victim's medical expenses.

If you do not pay a fine, fee or restitution, you may be charged with a misdemeanor and sent to prison for up to a year, your wages may be garnished or the state of New York may obtain a judgment against you. The court may reduce the amount of the fees, fines and restitution you are required to pay, or change the payment terms based on your financial condition.

Orders of Protection. As part of the criminal process, the prosecutor may request and the judge may grant a Temporary Order of Protection against you in favor of the victim. An Order of Protection is designed to keep the victim safe by limiting your actions. The victim, also referred to as the complaining witness, will have told the prosecutor his or her side of story, giving details as to why a Order of Protection is necessary. Based on this information, the prosecutor will request that the judge issue a Temporary Order of Protection with specific requirements. For example, 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. If warranted, the order may require you to attend a substance abuse program.

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.

It is important that you follow the terms of an Order of Protection as long as it is in effect, even if you do not think it is warrant. The penalty for violating an Order of Protection is that you may be charged with criminal contempt and be sentenced to jail.

Long-Term Consequences. Regardless of what your sentence is, if you are convicted of assault in the third degree 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. Even though assault in the third degree is a misdemeanor you may still lose opportunities.

You may be inclined to think that being arrested for being in a fight is not serious. After all, the person you injured was not seriously injured. However, it is very important that you do take it seriously. While assault in the third degree is a misdemeanor the consequences of a conviction can have a substantial affect on your future. You may end up spending a year in jail-- away from your family and friends. Once you return you will have to face life with having a 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:

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