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Queens Assault With a Dangerous Instrument

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

Assault is a criminal act that involves intentionally, recklessly or negligently causing physical injury to another person. A common scenario for an assault is when one person simply punches another person. Another common way to assault someone is to use a deadly weapon such as a knife or a gun. However, there are a variety of objects that can be used to physically injure someone. If you assault someone using an object that is typically not a weapon, then you may be charged with assault with a dangerous instrument. Examples of dangerous instruments include pool cues, bar stools, steel-toed boots, and cars. Using a dangerous instrument to assault someone can leave that person with serious physical injuries. For that reason the consequences of being convicted of assault with a dangerous instrument conviction can be severe. You could end up spending years in prison and paying significant fines, fees, and restitution. Thus, if you have been charged with assaulting someone using a dangerous instrument it is important that you immediately contact an experienced Queens Assault with a Dangerous Instrument Lawyer who understands the criminal assault statute and who will aggressively defend you until your case is resolved.

Assault with a dangerous instrument charges

An assault with a dangerous instrument charge can be any one of 3 different types of assault charges including assault in the first degree, assault in the second degree, and assault in the third degree. New York criminal law defines a dangerous instrument as any instrument, article or substance that is capable of causing death or serious injury. The court has interpreted the phrase to mean practically any object or thing that can be used in a manner such that it is capable of causing serious physical injury.

Assault in the first degree. You will face a change of assault in the first degree if with intent to cause serious physical injury you seriously injure another person with a deadly weapon. Or, 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. For example, in People v. Sharpe, 896 N.Y.S.2d 189 (2010) the defendant faced an assault in the first degree charge after beating someone with a bar stool.

Assault in the second degree. Assault in the second degree with a dangerous instrument is similar to assault in the first degree assault with a dangerous instrument. 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. Warren, 949 N.Y.S.2d 496 (2012), defendant Andrew Warren was convicted of assault in the second degree based on throwing the victim down a staircase onto a concrete landing, causing injury. While a concrete landing is not commonly viewed as a dangerous instrument, when used in the manner that the defendant used it, it became a dangerous instrument. In People v. Tehonica, 847 N.Y.S.2d 257 (2007) the defendant faced an assault charge after striking the victim with a pool cue.

Assault in the third degree. Assault in the third degree is the least serious assault with a dangerous instrument crime. It is a Class A misdemeanor. You will face this crime if with criminal negligence you cause physical injury to another using a dangerous instrument. 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)

The Arrest and Arraignment

If you are arrested for a assault with a dangerous instrument you will be taken to the local police precinct for fingerprinting and photographing. Within approximately 24 hours of your arrest 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, the prosecutor may decide to raise or lower the charges, or to add additional charges. You will also learn whether or not bail will be required.

If you are charged with a felony the prosecutor will present your case to the Grand Jury. The Grand Jury will decide whether you should be indicted, meaning charged with a crime, or released. If you are indicted, you may be able to negotiate a plea bargain with the prosecutor. There are rules regarding plea bargains and indicted felony cases. For example, if you are charged with assault in the first degree which is a Class B felony, the best "deal" that the prosecutor can offer is for you to plead guilty to a Class D felony. If you are not able to reach a plea agreement with the prosecutor, then your case will go to trial.

Defenses to an Assault Charge

Extent of Injury. To sustain any assault charge, at a minimum the victim must experience a "physical injury." Physical injury is defined as an impairment of physical condition or substantial pain. This means that the injury to the victim must be more than minor. For example, a scratch that requires only a small bandage and does not leave much of a scar would not be considered a physical injury for purposes of the assault statute.

Other assault crimes such as assault in the 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 injuries that were so severe that the there was a good possibility that the victim might die or suffer an extended physical impairment. N.Y. Pen. Law § 10.00(10). 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 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. Thus, if the reason that you injured the other person is because you were protecting yourself from that person, then you may have a valid defense to an assault charge. 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.

Consequences of an Assault Conviction

Whether you go to jail or prison for an assault with a dangerous instrument conviction depends on the specific charge of which you are convicted. A conviction for misdemeanor assault in the third degree will result in a far less severe sentence than a conviction for felony assault in the first degree. In most cases for a conviction of assault with a dangerous instrument, you are likely to be sentenced to prison. The actual length of your prison sentence will depend on factors such as your prior criminal record. Your criminal history will place you in one of the following categories:

  • Non-Violent Predicate Offender: You have been convicted of a non-violent felony within the last 10 years.
  • Violent Predicate Offender: You have been convicted of a violent felony within the last 10 years.
  • Persistent Felony Offender: You have been convicted of a at least 2 prior felony offenses.

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.
  • 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; maximum 7 years
    • Non-violent predicate: Minimum 3 years in prison; maximum 7 years
    • Violent predicate: Minimum 5 years in prison; maximum 7 years
    • 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; maximum 25 years
    • Non-violent predicate: Minimum 8 years in prison; maximum 25 years
    • Violent predicate: Minimum 10 years in prison; maximum 25 years
    • Persistent felony offender: Minimum 20-15 years in prison; maximum life
Community Supervision

Community supervision is a type of sentence that allows the offender to live within the community. However, the offender remains under the supervision of the Department of Corrections and the Department of Probation to minimize the opportunity for re-offending and to ensure the safety of the community.

If convicted of a felony assault with a dangerous instrument offense, 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). You will serve your term of post-release supervision after being released from prison. Probation is another type of community supervision. However, probation is served in lieu of a prison sentence, concurrently with a prison sentence, or partially with a prison sentence with the remainder being served following release.

Both types of community supervision come with specific rules. The rules include that:

  • You must not commit a crime
  • You must not leave the State of New York without permission
  • You must consent to warrantless searches
  • You must not associate with disreputable people
  • You must not patronize 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 any ordered medical or 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 regularly report to your Parole or Probation Officer
  • You must pay restitution if ordered

If you violate any of the rules associated with your community supervision you may be sent to prison.

Additional Financial Consequences

In addition to having to pay a fine of up to $1,000 for a misdemeanor assault with a dangerous instrument conviction or up to $5,000 for a felony conviction, you will be required to pay certain fees including a "mandatory surcharge" of up to $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. Furthermore, if part of your sentence is probation or post-release supervision, you will have to pay a monthly fee of $30.

Another financial consequence of an assault with a dangerous weapon conviction is that you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $10,000 for a misdemeanor and $15,000 for a felony. However, the court may increase the amount to more than the statutory limit to cover the amount of the victim's medical expenses. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

If you do not pay a fine, fee or restitution the possible consequences are:

  • You could be arrested and charged with criminal contempt
  • The victim could file a civil lawsuit to recover the ordered restitution
  • If you are on probation it could be revoked
Order 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 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. If you violate an Order of Protection, you could face additional criminal charges that could result in you going to prison.

Long-Term Consequences

Being convicted of assault with a dangerous instrument will result in you having a criminal record. While your prison sentence, probation term and post-release supervision term will all end, and you will be able to pay off your financial obligations, a criminal record will remain with you for the rest of your life. Here are a few ways that having a criminal record will impact your life:

  • Difficulty in finding a job, as many employers will resist hiring someone with a violent criminal past
  • Barred from certain professions such as teaching and practicing law
  • Ineligible for certain government benefits such as welfare and federally-funded housing
  • If you are not a citizen you may be subject to deportation under federal law
  • Barred from serving on a jury
  • Barred from owning a gun

If you are accused of assaulting another person with a dangerous instrument you should take the situation very seriously. The consequences of a conviction are life-altering. You may be sent to prison. You may be ordered to pay thousands of dollars in fines, fees and restitution. You will end up with a criminal record. However, where you are charge with assault in the first, second or third degree, there may be defenses to a charge of assault with a dangerous instrument that only an experienced practitioner will understand and be able to apply to your case. Thus, if you have been arrested for assault with a dangerous instrument, it is important to immediately contact someone understands the New York criminal system. 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 dangerous instrument, assault with a deadly weapon, as well as other assault crimes, 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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