New York Assault Attorney Andrew Stengel. “Assault” covers a range of crimes in New York, which may be called battery in other states. New York assault charges range from misdemeanors to violent felonies, depending upon a variety of factors. Misdemeanor Assault in New York Assault in the Third Degree a class A misdemeanor in New York, which is punishable by up to 1 year in jail. A person is guilty of Assault in the Third Degree when he or she: with intent to cause a physical injury to another person, actually causes a physical injury to that person. Physical injury. What constitutes A “physical injury?” Physical injury means the impairment of one’s physical condition or substantial pain. That could be anything from a broken bone to a bruise, or even a scratch or merely feeling pain. Harassment in the Second Degree. In New York, harassment in the second degree is often charged along with Assault in the Third Degree. The most common form of Harassment in the Second Degree involves physical contact such as a kick or shove. Harassment in the Second Degree is a violation and not a crime and a conviction does not result in a criminal record. A Harassment conviction will ultimately be sealed, unless the case is classified as Domestic Violence. Where Domestic Violence is involved, the conviction may only be sealed with the consent of a prosecutor. Assault in the Second Degree. In New York the crime includes: Intentionally causing a serious physical injury to a person. Intentionally causing a physical injury with a deadly weapon or dangerous instrument. Intentionally causing physical injury to an MTA employee like a bus driver or subway conductor. Recklessly causing a serious physical injury with a weapon. Those are just a few of the many circumstances where Assault in the Second Degree may be charged. Assault in the Second Degree is a class D violent felony. and carries a mandatory minimum prison sentence of 2 years for a first offender and a maximum of 7 years. Serious physical injury. In New York, serious physical injury means causing a substantial risk of death, protracted disfigurement, protracted impairment of one’s health or protracted impairment of the function of a bodily organ. Assault in the First Degree. The crime includes causing a serious physical injury with a weapon or during the commission of a felony. The crime may also arise from intentionally and permanently disfiguring a person or engaging in reckless behavior that creates a grave risk. Assault in the First Degree is a class B violent felony, carrying a mandatory minimum prison sentence of 5 years for a first offender and a maximum sentence of up to 25 years. Orders of protection in New York Assault cases. When an Assault case involves Domestic Violence or the defendant and complaining witness know one another, the prosecutor will typically request an Order of Protection. An Order of Protection may even be requested if the defendant and the complaining witness were strangers. Orders of Protection will usually remain in effect as long as the case is pending, and will prohibit contact and communication of any kind (including via social media) with the protected party or parties. Unless the case is dismissed, an Order of Protection will likely be part of the final disposition of the case and will last for a period of years thereafter. Assault and Hate Crimes in New York. A wide range of crimes, including Assault, may be “aggravated” if it is classified as a hate crime, which means the classification of the crime is bumped up. Assault in the Third Degree, which is a class A misdemeanor, becomes a class E felony if classified as a hate crime. Assault in the Second Degree, which is a class D felony, becomes a class C felony, and so on. The bump up in classification carries an increase in the possible sentence. What is a Hate Crime? Assault and other crimes are charged as a hate crime when there is evidence that the act was committed because of a belief about the race, color, national origin, ancestry, gender, religion, religious practice age, disability or sexual orientation of the complaining witness. It does not matter whether or not that belief is accurate. For example, an alleged assault where there is evidence that the act is based on a belief that the complaining witness is gay constitutes a hate crime regardless of the sexual orientation of the complaining witness. Defenses to Assault Charges in New York. In New York, the most important defense to an assault charge is known as “justification.” Justification basically means “self defense,” and also includes the defense of another person. Justification is an affirmative defense and must be proven by a defendant by preponderance of the evidence, which is a much lower standard than proof beyond a reasonable doubt. As a former prosecutor and current criminal defense attorney in New York, Andrew Stengel has aggressively and successfully handled hundreds of cases of alleged assault. Visit the website of Andrew Stengel for more information: stengellaw.com. Or send an email to [email protected] Attorney advertising. Prior results do not guarantee a similar outcome.