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Suffolk County Assault in the First Degree

N.Y. Pen. Law § 120.10

Assault is one of the most common criminal offenses in New York and across the country. Simply put, assault is intentionally, recklessly or negligently harming another person. There are varying degrees of the crime assault that relate directly to the severity of the injury to the victim and the means by which the assault is accomplished. Assault in the first degree is the most severe type of assault. If convicted not only will you could end up in prison for up to 25 years in prison. Furthermore, your sentence may also include several years of post-release supervision as well as severe financial consequences. However, there are defenses to an assault in the first degree charge. Thus, if you have been charged with assault in the first degree it is important that you immediately speak with an experienced New York Assault in the First Degree Lawyer who will listen to the facts of your case and who will aggressively defend you against the charges.

Assault in the First Degree

New York Penal Law includes 3 degrees of the crime of assault: assault in the first degree, assault in the second degree and assault in the third degree. Assault in the first degree is the most serious of the three offenses. It is a Class B felony and carries a possible prison sentence of up to 25 years.

There are 4 scenarios that would lead to a charge of assault in the first degree.

  1. You assault another person with a deadly weapon or dangerous instrument, causing serious physical injury to that person or to a third person. N.Y. Pen. Law § 120.10. New York's criminal statute gives several examples of what is considered a dangerous weapon: means any loaded weapon from which a shot may be discharged, a knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles. N.Y. Pen. Law § 10.00(12). A dangerous instrument is defined as anything 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). Serious physical injury means an injury that is so severe that the there is a good chance that the victim might die or suffer a protracted physical impairment. N.Y. Pen. Law § 10.00(10).

    In the case of People v. Johnson, 967 N.Y.S.2d 217 (2013) defendant Andrea Johnson was convicted of assault in the first degree based on assaulting the victim in such a manner that seriously injured the victim's face. The defendant argued that the victim did not see a knife or blade. However, the court concluded that the victim's testimony that she felt a knife or a blade on her face, coupled with the injuries sustained by the victim was enough to support a first degree assault conviction.

  2. You assault another person and as a result you seriously or permanently disfigure that person or a third party. In People v. Dietz, 947 N.Y.S.2d 891 (2013), defendant Kordian Dietz was convicted of assault in the first degree based on hitting the victim in the face with a bottle. The court concluded that in doing so Dietz intended to seriously and permanently disfigure the victim.

  3. You reckless engage in conduct that creates a grave risk of death and as a result cause someone a serious physical injury. For example, in People v. Miller, 966 N.Y.S.2d 88 (2013), defendant Oscar Miller was convicted for assault in the first degree after driving his car at high speeds and recklessly in an attempt to evade the police. Miller ended up hitting and seriously injuring a bystander. The jury concluded that Miller's actions showed a depraved indifferent for human life.

  4. You assault and cause serious physical injury to a non-accomplice while you are committing a felony, attempting to commit a felony, or fleeing after you have committed or attempted to commit a felony.

Arrest and Arraignment

Once you are arrested 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. Because assault in the first degree is a Class B felony, the police will not have the option of giving you a Desk Appearance Ticket that will allow you to be released with a ticket telling you when and where to appear in court for your arraignment hearing. N.Y. Crim. Proc. Law § 150. Instead you will be taken to Central Booking where you will remain for several hours 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. At that time you will have the opportunity to make a plea of guilty, not guilty or no contest. If you plead not guilty, then the issue of bail will be determined. The judge's options are to release you on your own recognizance, meaning that no bail is required, setting a bail amount, or ordering that you be held without bail.

At some point the prosecutor may offer you a "deal." The prosecutor will try to resolve the case without going through the time and expense of a trial. Thus, the prosecutor may offer you the option to plead guilty to a lesser criminal charge such as assault in the second degree. The incentive to you will be that you would receive a lighter sentence then you would receive if you were found guilty of the original charges are a trial before a judge or jury. However, if you accept the plea agreement you will still be convicted of a crime and you will still receive some sort of punishment.

Defenses to an Assault Charge

Injury. In order to charge you with assault in the first degree, the prosecutor must be able to show that the victim's injury was so severe that the there was a good chance that the victim might die or suffer a protracted physical impairment. N.Y. Pen. Law § 10.00(10). If you can show that the victim's injuries were in fact not serious, then you may have a valid defense to assault in the first degree charges. For example, in People v. Philips, 992 N.Y.S.2d 104 (2014), the defendant's conviction on an assault in the first degree charge was overturned on appeal. The court agreed with the defendant that there was no evidence that the victim suffered a serious physical injury. However, even if you can show that the evidence did not support a first degree charge, it might support a less severe assault charge. That is what happened in People v. Philips. Philips first degree conviction was reduced to a third degree assault conviction. Of course the punishment for a third degree conviction is less severe than the punishment for a first degree assault conviction.

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. This is called "self-defense" or "justification." If you injure someone who attacked you or who you have a reasonable fear was about to physically harm you, you may have a valid defense to an assault charge. For example, in People v. Fermin, 828 N.Y.S.2d 546 (2007), the defendant was convicted of assault in the first degree after having shot the victim. On appeal, however, the court set aside the conviction noting that because the victim approached the defendant with a gun and the defendant may have been justified in shooting the victim based on self-defense.

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. 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 Conviction

If you are convicted of assault in the first degree your sentence will include incarceration, a fine and probation. In addition, an Order of Protection may be issued against you. It is important to understand that if you are charged with assault in the first degree, depending on the facts of your case, you may face additional criminal charges. If you are convicted of multiple offenses, your sentence will be negatively impacted.


Assault in the first degree is a Class B felony. The maximum possible sentence is 25 years in prison. N.Y. Pen. Law § 70.02. Because assault in the first degree is classified as a violent felony, the judge is required to impose a minimum sentence of 5 years. Your sentence will be determinate, meaning that it will be a set period of years, and will not involve a range. The length of your prison sentence will depend on factors such as your prior criminal record. You will be classified based on your prior criminal record.

Even if you have no prior convictions then the minimum sentence you will receive is 5 years in prison. The court will not have the option of sentencing you to no prison time. If your status is that of a non-violent predicate offender, meaning that you were convicted of a non-violent felony within the prior 10 years, then the court will sentence you to at least 8 years for an assault in the first degree conviction, while if you are a violent predicate offender, you will be sentenced to at least 10 years in prison. For example, in People v. Miller, 062014 NYAPP4, 2014-04641 (June 20, 2014), defendant Damien Miller was convicted of assault in the first degree. Because he was also convicted of burglary in the second degree Miller was sentenced as a predicate violent offender for the first degree assault conviction. He was sentenced to 15 years in prison.

If you are a persistent felony offender, then the minimum sentence you will receive is 20-25 years in prison; the maximum sentence is life in prison. N.Y. Pen. Law § 70.08.

Post-Release Supervision

If convicted of assault in the first degree part of your sentence will include a term of post-release supervision of 2.5-5 years. N.Y. Pen. Law § 70.45(f). Post-release supervision is a type of community supervision that allows offenders to live at home, work in the community, support their families, and receive supportive services in a way that also keeps the community safe. There will be several rules that you must follow while you are on post-release supervision. Such rules may 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 have criminal records
  • You must now own, possess or purchase a gun
  • You must not possess a controlled substance or drug paraphernalia
  • You must refrain from consuming alcohol
  • You must stick to a curfew
  • You must have job
  • You must submit to home visits by your Parole Officer
  • You must submit to drug testing
  • You must regularly report to your Parole Officer

If you violate any of the terms of your post-release supervision, you will receive a revocation hearing. Based on the evidence presented, the outcome of such a hearing may be that your post-release supervision statutes is undisturbed, you will be required to go back to jail for a period and then back on post-release supervision status, or you may be required to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Fines and Restitution

Your sentence may also include the payment of a fine of up to $5,000 as well as restitution to your victim. Generally, the maximum amount of restitution is $15,000. However, the court may increase the amount to more than $15,000 to cover the amount of the victim's medical expenses.


Furthermore, you will be required to pay certain fees including 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 parole supervision fees of $30 per month.

Orders of Protection

As part of the criminal process, the prosecutor may request and the judge may grant an Order of Protection in favor of the victim. An Order of Protection is designed to keep the victim safe by limiting your actions. For example, an Order of Protection may state that you are not permitted to go near the victim, the victim's children and the victim's place of employment. If you live with the victim, you may be ordered to move. If you violate an Order of Protection, you could face additional criminal charges. However, if you do not believe that an Order of Protection is warranted, then there are ways to fight such an order to get it vacated.

Criminal Record

If you are convicted of assault in the first degree or any assault charge, you will have a criminal record that will negatively impact many aspects of your life such as getting a job. You will be completely excluded from practicing in certain profession such as law, nursing or teaching. You will not be able to own a gun, serve in the military, or serve on juries. You will not be able to receive certain government benefits such as welfare or federally funded housing. If you are not a U.S. citizen, you may be subject to deportation under federal law.

The consequences of being convicted of assault in the first degree are harsh. Not only might you be sentenced to years in prison, you may also be required to pay stiff fines, fees and restitution. Furthermore, having a violent felony criminal record will limit your ability to find employment and make you ineligible to receive certain government benefits. However, there may be defenses to a charge of assault in the first degree that may result in the charges being dropped, in you being acquitted, or the charges being reduced. 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 first degree 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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