Assault occurs when a person injures another without legal justification. Assault can be a misdemeanor or a felony (felonious assault) depending on the intention, the severity of the injury, whether a dangerous instrument or deadly weapon was used, whether the victim had special protection under the law, and whether the injury was caused while committing another crime. Most cases of felonious assault occur when there is serious physical injury, or physical injury using a dangerous instrument or weapon, or physical injury against a special victim.
If you or your loved one are being charged with a felonious assault, we at the Law Offices of Albert Goodwin are here for you. You can call us at 212-233-1233 or send us an email at [email protected].
There are two types of felonious assault: second degree assault which is a class D felony and first degree assault which is a class B felony. Felonious assault is a violent felony.
Second degree felonious assault can be committed in twelve ways. However, the four most common second-degree felonious assaults involve:
The other types of second-degree felonious assaults involve causing physical injury to a special victim, such as a police officer, prosecutor, registered nurse, sanitation worker, firefighter, medical technician administering first aid, city marshal, school crossing guard, traffic enforcement officer, employee of a local social services district investigating child or elderly or mentally or physically-disabled abuse, a child below 11 years old, a student by a non-student or school employee, train operator, ticket inspector, conductor, bus operator, employee of the housing authority, or a senior 65 years of age or older.
First degree felonious assault is committed in four ways:
Based on the definitions of first degree and second degree felonious assault, a regular person can be confused in determining whether an act falls under second degree or first degree assault. This is why consulting with a criminal defense lawyer, like us, is important when being charged with felonious assault.
For example, using a deadly weapon or dangerous instrument can be either first degree or second degree felonious assault. One difference is the severity of the injury. If, in both cases, there was an intention to cause physical injury, if only physical injury was caused, it is second-degree assault. If serious physical injury resulted, it is first degree assault.
On the other hand, intention can also make a difference in determining whether it is first or second degree assault. If you recklessly caused serious physical injury using a dangerous instrument or deadly weapon, it is second degree assault, as opposed to intentionally causing serious physical injury with a deadly weapon, making the assault first degree.
In determining various degrees of felonious assault, the prosecutor will look into the following factors: physical injury versus serious physical injury, acting intentionally versus recklessly, and the use of a deadly weapon or dangerous instrument.
Under New York Penal Law § 10, physical injury means impairment of physical condition or substantial pain while serious physical injury is physical injury which creates a substantial risk of death or which actually causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.
For example, if you suffered a black eye, bruise, or swelling, that is physical injury. If you suffered a knife cut which required several stitches resulting in a substantial visible scar in the neck or a deep puncture wound on the lip which required hospitalization for several days and disfigurement for 2 months and a visible scar years later, this is serious physical injury.
Under NY Penal Law § 15.05, there is an intention to cause injury when the person wants the injury to happen. The person’s conscious objective is to cause the injury or engage in that conduct. When a person acts intentionally, even if the intended victim was not injured and another person was injured, there is still assault.
Acting recklessly, on the other hand, occurs when the person is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur. There must be gross deviation from the standard of conduct that a reasonable person would observe in the situation. Intoxication or being high is not a defense to reckless assault.
For example, if you aim to stab A with a knife, but you hit B instead, causing a superficial cut which did not even require stitches nor hospitalization, there is second degree felonious assault with respect to B (and an attempt against A). However, if you were acting recklessly waving your knife back and forth because you were telling a story, and suddenly, you hit A, causing a superficial cut that did not require stitches or hospitalization, then this is assault in the third degree which is a misdemeanor. On the other hand, if you were acting recklessly waving your knife back and forth while telling a story, and you hit A, causing a deep wound in the face which resulted to a visible scar which could not be removed and required reconstructive surgery, then it could be first degree felonious assault.
Under NY Penal Law § 10, a deadly weapon is any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, black jack, plastic knuckles or metal knuckles. A dangerous instrument is any instrument, article or substance, including a vehicle, which, under certain circumstances when used, can cause death or other physical injury.
A deadly weapon is quite easy to ascertain. This can be a gun, a knife, or metal knuckles. A dangerous instrument, on the other hand, may not look like a dangerous instrument, but when used to cause physical injury, can be deadly. For example, a pen or a letter opener can be used to stab a person. A chair can be thrown to another person, causing physical injuries. Basically, any thing used to injure a person can be considered a dangerous instrument.
Hypothetical examples can help you understand felonious assault better because the legal definitions in penal law are strictly construed and important in determining the varying degrees of assault.
For example, you were in a bar, and you got into a fist fight with A. You punched A several times in the head, resulting to his hospitalization for several days and which required several stitches in his forehead. In the course of punching A, B was trying to stop you, and without meaning to, you hit B as well, resulting to a black eye for B. What crimes did you commit? With respect to A, there could be a charge of second degree felonious assault because you intentionally caused serious physical injuries to him. With respect to B, it could be assault in the third degree.
Suppose instead that, despite punching A several times, A only had a small black eye. In this case, you can only be charged at the most with third degree assault, which is a misdemeanor because you only caused physical injury without any use of a dangerous instrument or deadly weapon.
Using the same example, if you used a gun to hit the head of A, instead of your fist, then you used a deadly weapon or dangerous instrument to intentionally cause serious physical injuries. With respect to A, you could be charged with first degree felonious assault. With respect to B, if you hit B with the gun without intentionally meaning to, because you were meaning to hit A but hit B because he came in the way when he tried to stop the fight, it could be second degree felonious assault because you caused physical injury with a dangerous instrument.
Self-defense is normally used as a justification in felonious assault. A criminal defense attorney, like us, will normally be able to reduce misdemeanors to a non-criminal offer, an adjournment in contemplation of dismissal (ACD), disorderly conduct or harassment, or reduce the level of felony. Even a violent felony, such as felonious assault, can sometimes be given an ACD, depending on the facts of the case, the strength or weakness of the prosecutor’s evidence, the defendant’s prior contacts with law enforcement and criminal convictions, and the defendant’s age, character, and standing in society.
ACDs are usually offered in misdemeanors. In a violent felony, such as felonious assault, if a criminal defense attorney, like us, can convince the prosecutor that her case is flawed, an ACD may be offered, especially when the defendant is a first-time offender. Sometimes, you can also fight the case long enough and hard enough that the prosecutor will give in and offer you an ACD. It all depends on the circumstances of each case.
An ACD is a very attractive plea bargain offer to a criminal defendant. ACDs are not admissions of guilt or a guilty plea. If you receive an ACD, your case is adjourned for 6 months, and provided you are not re-arrested within this time period, the case will be dismissed and sealed after 6 months. ACDs are usually offered with counseling or behavior modification programs and community service. An ACD will have no impact on future employment or educational opportunities. However, it may have an impact on foreigners who require a visa or who need their visa to be renewed within the 6-month adjournment period.
If you have been or you feel you will be charged with felonious assault, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY, and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].