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Suffolk County Reckless Assault of a Child by a Child Day Care Provider

N.Y. Pen. Law § 120.01

Child care workers are charged with caring for children while their parents are working. Parents put the utmost trust in child care workers to keep their children safe and entertained. Unfortunately, there are cases where child care workers fall short in their duties. Instead of keeping children safe, there are instances where child care workers harm children. If you are a child care worker and you assault a child in your care, you will face a charge of reckless assault of a child by a child care provider. This offense is a felony. This means that if you are convicted there is a good chance that you will go to jail. In addition there are financial consequences of a being convicted of reckless assault of a child by a child care provider. If you are facing this criminal charge, it is imperative that you immediately contact an experienced Suffolk County Reckless Assault of a Child by a Child Day Care Provider Lawyer who will explain to you your legal options and who will vigorously defend you.

Reckless Assault of a Child by a Child Day Care Provider

The New York criminal statute defines a "child day care provider" as anyone who provides child day care. "Child day care" is defined as 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. If you are a "nanny," for example, who goes to a child's home and care for a child there for a few hours each day, then you would not be classified a child day care provider for purposes of this particular criminal statute. However, you would be subject to this statute if you are a child day care provider as defined, or if you are an employee of a child day care provider.

You will face a charge of reckless assault of a child by a child day care provider if your reckless actions result in the physical injury of a child in your care who is less than 11 years old. You would have acted recklessly if you are away that your actions may result in the child's injury but you disregard that risk. N.Y. Pen. Law § 15.05(3). It is not necessary that you intended to cause injury to the child. All that is necessary is that your actions were reckless and resulted in the serious injury of the child victim. You should also be aware that 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

If you are charged with a crime, you will quickly learn that there are many steps in the criminal process, none of which are particularly pleasant. Once you are arrested you will be taken to the local police precinct where initial processing will take place. After initial processing you may be given a Desk Appearance Ticket (DAT) or you will be taken to Central Booking. If you are given a DAT the DAT will indicate when and where you must appear in court for your arraignment hearing. N.Y. Crim. Proc. Law § 150. If you are taken to Central Booking you will be required to be stay there 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 third 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

Type of Injury. The charge of reckless assault of a child by a day care provider requires that the child victim suffer a serious physical injury. A serious physical injury is one that creates substantial risk of death, that causes the victim to be impaired for an extended period of time, or that causes the impairment of the function of an organ. N.Y. Pen. Law § 10.00(10). This means that child would have had to suffer more than a cut, scrape or bruise. The child would have had to suffer an injury serious that medical treatment a hospital was required, and recovery time was not merely a day, but days or weeks. To prove that the child suffered a serious physical injury the prosecutor would have to produce sound medical evidence. In the absence of such evidence you would have a strong defense against such a charge.

However, if there is evidence that your actions resulted in the physical injury of the child, but the injury was not serious you still may face another criminal charge such as assault in the third degree. N.Y. Pen. Law § 120.00. To face a charge of assault in the third degree the injury to child must be a physical injury. A physical injury is an injury that causes substantial pain or physical impairment.

Misidentification. Oftentimes the severity of an injury to a child is not immediately apparent. In fact, in some cases in the minutes or even days immediately following the incident there may not be evidence that the child was injured at all. However, as time passes symptoms may appear or mild symptoms may become more severe, alerting parents 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, where the injury occurred or when the injury occurred. Parents may point to you as the child care provider when the evidence may not clearly point to you.

Consequences of an Assault Conviction

If you are convicted of reckless assault of a child by a child day care provider your sentence may include prison, probation, and payment of fines, fees, and restitution.


Reckless assault of a child by a child care provider is a Class E felony. As such 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 within the past 10 years, the law gives the judge the option of not including incarceration as part of your sentence. If your status is that of a predicate offender, meaning that you have been convicted of a felony within the past 10 years, then the court will sentence you to at least 1 1/2 to 3 years. If you are a persistent felony offender, meaning that you have been convicted of at least 2 felonies 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.


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. While such rules vary from person to person, they are likely to include the following:

  • You must avoid injurious or vicious habits
  • You must not associate with other people who have criminal records
  • You must not go to unlawful or disreputable places
  • You must not possess or use a controlled substance
  • You must attend a substance abuse program
  • You must refrain from consuming alcohol
  • You must consent to warrantless searches
  • You must regularly report to your Probation Officer
  • You cannot leave the State of New York without permission
  • If you move you must let your Probation Officer know of your new address
  • You must now possess a gun
  • You must stick to a curfew
  • You must have job or attend school
  • You must support your family and fulfill your family obligations

N.Y. Pen. Law § 65.10

If you fail to follow the rules associated with your probation, you risk being sent 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 prison or probation 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.

Criminal Record

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. If you operate a child care center, you may lose your license. Even worse, your reputation as a child care provider will be ruined. You may have a tough time getting a job. In addition, you will not be able to get a job teaching, nursing, or as a security guard. You will be prohibited from owning a gun, serving in the military, or serving on juries. You will also not be able to receive certain government benefits such as welfare or federally funded housing.

Being arrested for reckless assault of a child by a child care provider is serious. If you are convicted 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 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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