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Queens Reckless Assault of a Child by a Child Day Care Provider

N.Y. Pen. Law § 120.01

Assault is a criminal act that involves intentionally, recklessly or negligently causing physical injury to another person. Both society and law enforcement consider assaulting a child as a particularly repugnant act. While those who assault children are sometimes the parents or relatives of a child, in some cases the abuser is the child care provider. If you are a child care provider and you assault a child you will be charged with reckless assault of a child by a child day care provider. It is a felony. The penalty if convicted may not only include incarceration but also the payment of fines, fees, and restitution. Furthermore, your license to operate a child care business may be revoked and your professional reputation will be ruined. Thus, if you are suspected of assaulting a child, even if you have not yet been arrested it is a good idea to get ahead of the situation and immediately contact an experienced Queens Reckless Assault of a Child by a Child Day Care Provider Lawyer who will explain to you your legal options and vigorously defend you until the case is resolved.

Definition of Reckless Assault of a Child by a Child Day Care Provider

You will be charged with reckless assault of a child by a child day care provider if you are a child day care provider or an employee of a child day care provider and you recklessly cause serious physical injury to a child who is under 11 years old. It is a Class E felony. A "child day care provider" is defined as any individual, association, corporation, partnership, institution or agency that provides child day care. "Child day care" is regularly caring for a child at a place other than the child's residence for less than 24 hours a day by someone other than a relative. N.Y. SOS. Law § 390.

Unlike the similar crime of reckless assault of a child, reckless assault of a child by a child day care provider does not require that the injury be a serious brain injury, nor does it require that the injury be due to or consistent with shaking, slamming or throwing the child. Serious physical injury is defined as an injury that creates a substantial risk of death, that causes death, or that causes serious disfigurement or impairment. N.Y. Pen. Law § 10.00(10).

Like reckless assault of a child, with reckless assault of a child by a child day care provider intent to cause serious physical injury is not necessary. All that is necessary is that your actions were reckless and resulted in the serious injury of the child victim. New York Penal Law provides that you would have acted recklessly if you were aware of and disregarded a significant risk that your actions would result in such an injury to the child. N.Y. Pen. Law § 15.05(3).

If you are charged with reckless assault of a child by a child day care provider, there is a good chance that you will face other criminal charges such as endangering the welfare of a child, reckless endangerment, assault, or child sexual assault.

Arrest and Arraignment

Being arrested and taken to the local police precinct can be a very scary, lonely process. At the local precinct your personal information will be taken and you will be fingerprinted. Then you will be taken to Central Booking where you will remain until your arraignment. 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 assistant district attorney assigned to your case may decide to raise or lower the charge, or to add additional charges. At your arraignment you will also learn whether or not bail will be required.

At some point your case may be resolved through plea-bargaining. You and the prosecutor may arrive at a mutually satisfactory compromise that would require you to plead guilty to a lesser crime that would result in a lighter than if you were found guilty of reckless assault of a child by a child day care provider after a trial. Any agreement that you come to with the prosecutor is subject to the approval of the judge.

Defenses to an Assault Charge

Type of Injury. In order to prove that you committed reckless assault against a child, the child must suffer a serious physical injury. If the injury is less than serious, then the prosecutor will not be able to sustain a case of reckless assault against a child. Medical testimony will be pivotal in determining the extent and severity of the injuries to the child. However, if the prosecutor was able to show that you assaulted a child, even if the child's injuries were not serious enough to sustain a reckless assault of a child by a child day care provider, you may still be convicted of another offense such as reckless endangerment, endangering the welfare of a child, or assault in the third degree.

Misidentification. Oftentimes the severity of an injury to a child does not become apparent for hours or days after an assault. For example, lethargy, vomiting and a headache may be a sign of a serious injury or illness, may be sign of a minor injury or illness, or may not indicate an injury or illness at all. However, as time passes and the symptoms persistent it may become apparent that there is serious problem that requires medical attention. When medical assistance is finally sought it may be unclear as to who was likely responsible for the child's injuries or when the injury occurred or when the injury occurred. Parents may point the finger at the child care provider when there is little evidence that that person was responsible.

Consequences of an Assault Conviction

If you are convicted of assault in the second degree your sentence may include prison, probation, and payment of fines, fees, and restitution.

Prison. Reckless assault of a child by a child care provider is a Class E felony. The maximum possible sentence is 4 years in prison. N.Y. Pen. Law § 70.02. The actual length of your prison sentence will depend on factors such as your prior criminal record. If you have no prior convictions, the judge may sentence you to probation. If your status is that of a predicate offender because you have a prior conviction, then the court will sentence you to at least 1 1/2 to 3 years. If you are a persistent felony offender because you have at least 2 prior felony convictions then the minimum sentence you will receive is 12-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08.

Probation. If convicted of reckless assault of a child by a child day care provider and your sentence includes probation, the term of probation will be 5 years. While on probation you will be subject to a number of rules and restrictions. If you fail to follow the rules associated with your probation, you risk going back to prison.

Fines, Fees and Restitution. Being convicted of reckless assault of a child by a child day care provider can also have substantial financial consequences as you will likely be required to pay a fine, fees and restitution. In addition to being sentenced to up to 4 years in prison you may also be required to pay a fine of up to $5,000. Furthermore, you will be required to pay certain fees including a fee that is called a "mandatory surcharge" of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay probation supervision fees of $30 per month.

Another financial consequence of an assault in the second degree conviction is that you may be ordered to pay restitution to your victim. Generally, the maximum amount of restitution is $15,000. However, because the child's injuries would be so severe, the court may increase the amount to more than $15,000 to cover the child 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, you may be charged with a misdemeanor and sent to prison for up to a year, your wages may be garnished or a judgment may be obtained against you. However, if you cannot pay the judge may adjust the payment terms, lower the amount you must pay, or revoke the part of the sentencing requiring you to pay.

Additional Consequences. Even if you are sentenced to just probation there will be consequences of being convicted of reckless assault of a child by a child care provider for years into the future. You will have a criminal record that will make several aspects of your life more challenging. 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 operate a child care center, you may lose your license and your reputation as a child care provider will be ruined.

Being arrested for assaulting a child left in your care is quite serious. If you are convicted even if you are not sent to prison, you will have to pay substantial fines, fees and restitution and you may no longer be able to provide child care services. However, there may be defenses to a charge of reckless assault to a child by a child care provider that only an experienced practitioner will understand. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with reckless assault of a child by a child care provider as well as reckless assault of a child, 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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