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Westchester County Domestic Violence and Assault

N.Y. Pen. Law § 120.00, 120.02, 120.05, 120.10 & 130.00-130.91

Assault is one of the most common crimes committed not just in New York, but across the country. If you punch someone, get into a bar fight, or hit someone with an object and that person is injured, then you would have assaulted that person. An assault is also an act of domestic violence if the people involved are family members, or a couple that has a history of an intimate relationship. When people have an emotional connection, at times arguments turn heated and lead to physical violence. However, it is not always clear who initiated the physical violence or if there was indeed a physical component to the dispute. However, because of several high-profile cases of domestic violence and the media attention to the problem, law enforcement is eager to apprehend and prosecute anyone accused of domestic abuse, even if the evidence is questionable. It is important to keep in mind that just because you were accused of assault does not mean that you should be convicted of assault. If you have been charged with any type of assault related to an act of domestic violence it is critical that you speak with an experienced Westchester County Domestic Violence and Assault Lawyer who will carefully review the evidence in your case, listen to your side of the story and aggressively defend you against the charges.

Types of Domestic Violence Assault

Assault is one of the most common types of domestic violence. When emotions flare a simple argument can quick escalate to physical violence. While one assault offense is a misdemeanor, most are felonies.

Assault. There are 3 degrees of assault: assault in the third degree, assault in the second degree and assault in the first degree. N.Y. Pen. Law §§ 120.00, 120.05 and 120.10. Assault in the third degree is a Class A misdemeanor. To be charged with assault in the third degree you must have intentionally physically injured the other person. You may also face a charge of third degree assault if you recklessly cause physical injury to another person, or if with criminal negligence you caused physical injury to another person using a deadly weapon. N.Y. Pen. Law § 120.00. For example, in People v. Delgaudio, 959 N.Y.S.2d 91 (2012), the defendant was charged with assault in the third degree after beating his wife. Delgaudio was accused of striking his wife in the face multiple times with his fist as well as squeezing her neck.

Assault in the second degree is a Class D felony. If in an act of domestic violence you intentionally seriously injure your spouse, girlfriend, boyfriend, family member or roommate. N.Y. Pen. Law § 120.05. Under New York law a serious physical injury is 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). Another factor that could raise an assault to the level of assault in the second degree is if you used a deadly weapon such as a gun or knife, or dangerous instrument. A dangerous instrument is defined as any object that could be used to cause serious physical injury. N.Y. Pen. Law § 10.00(13). Examples include a car, bat, concrete floor, stun gun, pocket knife, box cutter and even a steel-toed boot.

Assault in the first degree is a Class B felony. You will face a charge of assault in the first degree if you used a deadly weapon or dangerous instrument to cause serious physical injury to another person; if you permanently disabled another person; if with depraved indifference to human life you put another person at risk of death and doing so you seriously injured that person; or if while committing a felony you caused serious injury to another person. N.Y. Pen. Law § 120.10. People v. Pignataro, 980 N.Y.S.2d 899 (2013) is an example of a case of domestic violence where the defendant was convicted of assault in the first degree after poisoning his wife.

Sexual assault is a common type of domestic violence. While some believe that it is not possible to sexually assault a wife or girlfriend, it is indeed possible. Sexual assault is a general term to describe several different sex offenses including rape, forcible touching, sexual abuse, criminal sexual act, sexual misconduct, sexual conduct against child, and facilitating a sexual offense with a controlled substance. Each offense involves having some sort of sexual contact with another person without that person's consent. For example, if you have sexual intercourse with your wife, girlfriend or roommate without her consent, then you may face a sexual assault charge of rape in the third degree. N.Y. Pen. Law § 130.25. If you do so using physical force, you could face a charge or rape in the first degree. N.Y. Pen. Law § 130.35.

Arrest and Arraignment

Being charged with a crime related to domestic violence is the first step in a long criminal legal process. If the police suspect that you have committed an assault you will be arrested and taken to the local police precinct. 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. While you were waiting to be arraigned, you were interviewed by a representative from the Criminal Justice Agency (CJA). The judge uses the report from the CJA to help decide what to do about bail. The judge can set a dollar amount for bail. The judge can choose to remand you, meaning that you will have to remain in jail while you await trial. Or the judge can release you without requiring bail.

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 the original assault charge after a trial. Any agreement that you come to with the prosecutor is subject to the approval of the judge.

Order of Protection

If you are charged with domestic violence assault the court may issue an Order of Protection against you placing restrictions on your interactions with the victim. An Order of Protection, commonly referred to as a restraining order, is a legally enforceable court order that is designed to protect someone against the violent or threatening acts of another person.

An Order of Protection can be full, limited or combination of both. A full Order of Protection will require you to stay away from the victim. The judge will be very specific as to what you can and cannot do. For example, the Order of Protection may require that you stay away from the home, school, business or place of employment of the victims. N.Y. Crim. Proc. Law § 530.13(1)(a). A full order of Protection is also called a "stay away" Order. A limited Order of Protection requires you to stop certain types of behavior including harassing, intimidating, threatening, or otherwise interfering behavior directed toward the victim or family members of the victim. It may also direct you to refrain from injuring or killing a pet of the victim. N.Y. Crim. Proc. Law § 530.13(1)(b). This type of Order is also called a "refrain from" Order.

At the beginning of the proceeding the judge may issue a temporary Order of Protection at the request of the prosecutor. At the end of the criminal case, if you are convicted the judge may make the Order of Protection permanent. Even though such an order is called "permanent" the maximum duration of a permanent Criminal Court Order of Protection is 8 years for a felony conviction, 5 years for a Class A misdemeanor conviction or 2 years for a Class B misdemeanor conviction.

Consequences of an Assault Conviction

If you are convicted of assault in the context of domestic violence there is a very good chance that your sentence will include incarceration. It will also likely include a fine, fees, restitution, and possibly post-release supervision or probation. Whether or not you are sent to jail depends largely on the seriousness of the crime of which you are convicted and your prior criminal record.

Prison and Fines
  • Class A misdemeanor. The maximum possible sentence is 1 year in jail and a fine of up to $1,000. Assault in the third degree is a Class A misdemeanor. Certain sexual assault offenses are also misdemeanors such as sexual misconduct, forcible touching, and sexual abuse in the second degree.
  • Class E felony. The maximum possible sentence is 4 years in prison and a fine of up to $5,000. Several sexual assault offenses are Class E felonies such as rape in the third degree, criminal sexual act in the third degree, and aggravated sexual abuse in the fourth degree.
  • Class D felony. The maximum possible sentence is 7 years in prison and a fine of up to $5,000. The following assault offenses are Class D felonies: assault in the second degree, and reckless assault. Rape in the second degree, criminal sexual act in the second degree, aggravated sexual abuse in the third degree and sexual abuse in the first degree are also Class D felonies.
  • Class C felony. The maximum possible sentence is 15 years in prison and a fine of up to $5,000. Aggravated sexual assault in the second degree is a Class C felony.
  • Class B felony. The maximum possible sentence is 25 years in prison and a fine of up to $5,000. Assault in the first degree is a Class B felony as are rape in the first degree, criminal sexual act in the first degree, and aggravated sexual abuse in the first degree.

If you are convicted of assault your sentence may include probation. This is likely to be the case if the offense is a misdemeanor, or if the circumstances of your case do not require the judge to following minimum sentencing guidelines that require incarceration. The term of probation will be 3 years for a misdemeanor conviction or 5 years for a felony conviction. For sex offenses the probation terms are twice as long. If your sentence includes both prison and probation, you will serve the terms concurrently. This means that if your sentence is 4 years in prison and 5 years of probation, you will serve 4 years of probation while you are in prison and the remaining year once you are released.

While serving your probation sentence you will be subject to many rules. If you break any of the rules a judge could revoke your probation and resentence you to prison. The rules will include that you must:

  • Avoid injurious or vicious habits
  • Refrain from frequenting unlawful or disreputable places
  • Refrain from consorting with disreputable persons
  • Have a job or be enrolled in school
  • Undergoing available medical or psychiatric treatment and remaining in a specified institution, when required for that purpose
  • Complete an alcohol or substance abuse program, if ordered by the court
  • Support your family
  • Pay restitution and fines
  • Perform community service
  • Post bond or other security for the performance of any or all conditions imposed;
  • Install an ignition interlock device on any vehicle that you use
  • Refrain from consuming alcohol
  • Regularly report to your Probation Officer
  • Obtain permission before traveling or moving outside of New York
  • Notify your Probation Officer if you move or change employment
  • Submit to electronic monitoring

N.Y. Pen. Law § 65.10.

Post-Release Supervision

If convicted of a violent felony assault part of your sentence will include a term of post-release supervision of up to 5 years. Like probation, while you serve your term of post-release supervision there will be several rules that you must follow. If you violate any of the terms of your post-release supervision you will receive a revocation hearing before a judge. Based on the evidence presented, the judge may allow you to continue with the post-release supervision with the terms undisturbed, require you to go back to jail for a period and then return to post-release supervision status, or require you to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Fees and Restitution

In addition being ordered to pay fine, you will also have to pay fees and restitution. The amount of restitution will depend on the losses suffered by the victim as a result of your assault. For example, if you injured your victim you may be ordered to pay the medical expenses. Typically, the maximum amount of restitution that you will be ordered to pay is $15,000. However, if the victim's medical expenses are more than $15,000, the judge may order a higher amount of restitution.

If you have been charged assault related to an act of domestic violence a lot is at stake. If you are convicted not only might you lose your freedom, but your career is also at risk. In addition, if you are convicted, any child custody arrangement that is in place is in jeopardy. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with domestic violence offenses such as assault, 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 domestic violence in the following locations:

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