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Westchester County Domestic Violence and Assault With a Knife

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

There are several different crimes that are commonly associated with domestic violence. Assault is one of the most common. Assault involves intentionally or recklessly injuring another person. If a knife is used during the attack, the possibility that the victim will suffer a painful, serious injury increases dramatically. Whether you intend to seriously hurt the victim or not, a knife could easily damage a vital organ, cause the victim to lose a great deal of blood, cause permanent disfiguration or even lead to death. Because of the gravity of assaulting someone with a knife, prosecutors will work hard to make sure that you are convicted and receive a harsh punishment. You could end up spending years in prison and be required to pay thousands of dollars in fines, fees and restitution. Thus, if you have been charged with assaulting someone with a knife during a domestic dispute it is important that you immediately contact an experienced Westchester County Domestic Violence and Assault with a Knife Lawyer who understands both the intricacies of domestic relationships as well as the nuances of New York assault law, and who will aggressively defend you until your case is resolved.

Assault with a knife charges

If you use a knife during the commission of an assault you will be charged with either assault in the first degree, assault in the second degree, or assault in the third degree. There are several different types of knives specifically mentioned in the criminal statute including a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, box cutter and dagger. If you use any type of knife while assaulting someone and you injure that person, the assault is likely to result in a serious charge as using a knife will show your intent to cause injury. In addition, the use of knife is more likely to cause the victim serious injuries and permanent disfiguration.

Assault in the first degree. You will face a change of assault in the first degree if with intent to cause serious physical injury if you seriously injure another person, including someone with whom you have a domestic relationship, or a third person with a deadly weapon. A knife is classified as a deadly weapon. 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.

Assault in the second degree. Assault in the second degree with a knife is similar to assault in the first degree with a knife. 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.

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

Arrest and Arraignment

Being charged with a crime in New York can be scary and overwhelming. If the police suspect that you have assaulted someone with a knife 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.

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 assault with a knife 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 with a knife there is a good chance that 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.

Defenses to an Assault Charge

Extent of Injury. To sustain any domestic violence assault with a knife charge, at a minimum the victim must experience a "physical injury." As a physical injury is defined by New York Penal law as an impairment of physical condition or substantial pain, most knife wounds would likely qualify. At a minimum a knife wound would be enough for an assault in the third degree. Other assault crimes such as assault in the first or 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 more than a slight prick with the knife or a flesh wound. The injury must be so severe that the there was a good possibility that the victim could have died or suffered an extended physical impairment. N.Y. Pen. Law § 10.00(10). While a knife could cause deep lacerations, permanent disfiguration or injury to vital organs, 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 first or 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. This type of defense is commonly referred to as self-defense and is often used in domestic violence assault cases. If the reason that you used a knife to injure the other person is because you were protecting yourself or a third party such as a child, then you may have a valid defense to an assault charge with a knife. 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. For example, if your much smaller girlfriend shoved you, it would not be appropriate to defend yourself by stabbing her with a knife. Furthermore, if you had the opportunity to retreat but instead you used a knife, the court may not be swayed by the justification defense.

Consequences of an Assault Conviction

Whether you go to jail or prison for an assault with a knife conviction depends on the specific charge of which you are convicted. A conviction for misdemeanor third degree assault with a knife will result in a far less severe sentence than a conviction for felony first degree assault with a knife. While if you are convicted of third degree assault with a knife you may avoid prison, in most cases for a conviction of assault with a knife you will end up going to prison for at least 2 years. The actual length of your prison sentence will depend on factors such as your prior criminal record. If you have been convicted of a non-violent felony with the past 10 years, you will be classified as a non-violent predicate. If you have been convicted of a violent felony with the past 10 years, you will be classified as a violent predicate. If you have been convicted of 2 more felonies, you will be classified as a persistent felony offender.

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. Your sentence may also include a probation term of 3 years.
  • 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
    • Non-violent predicate: Minimum 3 years in prison
    • Violent predicate: Minimum 5 years in prison
    • Persistent felony offender: Minimum 12-15 years in prison; maximum life

In People v. Taylor, 986 N.Y.S.2d 711 (2014), upon being convicted of second degree assault with knife, the defendant was sentenced to 7 years in prison.

  • 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
    • Non-violent predicate: Minimum 8 years in prison
    • Violent predicate: Minimum 10 years in prison
    • Persistent felony offender: Minimum 20-15 years in prison; maximum life

For example, in People v. Abdul-Khaliq, after being convicted of first degree assault with a knife, because the defendant was a second time felony offender, the court sentenced him to 15 years prison.

Post-Release Supervision

If convicted of a felony assault offense based on using a knife, because such an offense is a also a violent felony 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). For example, in People v. Taylor, in addition to be sentenced to 7 years in prison, the defendant was also sentenced to 3 years of post-release supervision.

There will be several rules that you must follow while you are on post-release supervision, called the conditions of post-release supervision. While certain rules will apply to all on post-release supervision, there may be specific rules applied to your post-release supervision to help ensure a smooth, crime-free transition from prison back into the community. The general conditions are:

  • You must go directly to the area to which you have been released
  • Within 24 hours you must report to the Division of Parole
  • You must report to your Parole Officer regularly
  • You must submit to home visits and searches by your Parole Officer
  • You must submit to visits by your Parole Officer at your job
  • You cannot leave the State of New York without permission
  • You must let your Parole Officer know if you change residences or change jobs
  • You must respond promptly and truthfully to any inquiries from your Parole Officer
  • You must inform your Parole Officer if you are arrested or contacted by law enforcement
  • You must not associate with people who you know to have criminal records
  • You must not break the law or do anything to threaten the safety of others
  • You cannot own, possess, or purchase a shotgun, rifle, any other type of firearm, dangerous knife or any other type of deadly weapon
  • You must not use or possess drug paraphernalia or any controlled substance

If you violate any of the conditions of your post-release supervision, you will have to appear before a judge at a revocation hearing. The judge will decide whether to allow you to continue with the post-release supervision with the terms undisturbed, to change the terms of your post-release supervision, to send you back to jail for a period and then allow you to return to post-release supervision, or to require you to return to prison to serve time for violating your post-release supervision.

Financial consequences

In addition to having to pay a fine of up to $1,000 for a misdemeanor assault with a knife conviction or up to $5,000 for a felony conviction, you will be required to pay certain fees including a "mandatory surcharge" of $175-$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.

Another financial consequence of an assault with a knife conviction is that you may be ordered to pay restitution to the victim. Generally, the maximum amount of restitution is $10,000 for misdemeanors and $15,000 for felonies. However, the restitution may be considerably more as medical expenses for knife wounds can be significant and the court may require you to pay those expenses.

Failure to pay a fine, fee or restitution may result in your being charged with a misdemeanor and sent to prison for up to a year, your wages being garnished or a judgment being filed against you. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Order of Protection

As part of the criminal process, in cases of domestic violence assault the prosecutor almost always requests and the judge grants an Order of Protection in favor of the victim. It is also possible that the person accusing of sexual assault will go to Family Court and petition that the Family Court judge issue an Order of Protection.

The Order of Protection may be a full order or a limited order. If the Order of Protection is a full Order, it will require you to stay away from the victim. This means that you are not permitted to go to the person's home or job, that you are not permitted to communicate with that person in any way including via mail, email, text, phone, or fax, that you are not permitted to communicate with that person through a third party, and that you are not send that person flowers or gifts.

If there is a full Order of Protection, then you are prohibited from doing specified acts such as harassing, intimidating, or threatening the victim. While a criminal court Order of Protection that is issued at the beginning of a criminal case is generally temporary, depending on the outcome of the case, a temporary Order of Protection may become final-- meaning that it will remain in effect for up to 8 years. It the court concludes that there is no basis for the Order of Protection, it will be dismissed. If you believe that there is no basis for the order, you can fight it.

However, if an Order of Protection is in place and you violate it, there will be serious consequences. For example, with a criminal court Order, if you are out on bail and you violate the Order of Protection, your bail may be revoked and you may be sent to jail. If you are on probation, violating an Order of Protection will be a violation of the terms of your probation. You will likely be sent to prison.

For example, in People v. Lawing, 975 N.Y.S.2d 778 (2013) defendant Jermel Lawing violated a stay away Order of Protection on 3 occasions. Lawing was charged with two counts of criminal contempt in the first degree and one count of criminal contempt in the second degree. Upon conviction, Lawing was sentenced to 1 year in prison for the second degree charge and consecutive prison terms of 1 1/3 to 4 years for the two counts of first degree criminal contempt.

Long-Term Consequences

Even if you are convicted of only a misdemeanor assault with a knife charge and receive a sentence that includes little or no jail time, there will be additional consequences. You will have a criminal record that will impact many aspects of your life. For example, you will be barred from working in certain professions such as being a teacher or a lawyer. In addition, you will no longer to be able to own a gun, serve in the military, or serve on juries. Some colleges may refuse admission or ban you from living on campus. You will also not be able to receive certain government benefits such as welfare or federally funded housing. Furthermore, a felony conviction may affect your custody and visitation arrangement with your children particularly if the domestic violence occurred in the presence of your children, or if you were also charged with child endangerment. If you are not a U.S. citizen, under federal law you may be subject to deportation.

Facing the challenge of fighting an assault charge related to domestic violence may seem like a daunting, uphill battle. However, there may be defenses and other strategies that an experienced attorney can use to help you aggressively fight the charges. If you have been arrested for domestic violence involving assault with a knife, contact Stephen Bilkis & Associates, PLLC. 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 knife, as well as clients charged with other crimes related to domestic violence such as menacing, reckless endangerment, stalking, sexual assault, and child endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case.

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