Assault is charged when there is a physical altercation and someone is injured. The type of assault charged should depend on the circumstances of the confrontation and the seriousness of the victim’s injuries but these types of cases are frequently overcharged by the police and the District Attorney. When there is a fight between two people the NYPD and Westchester police departments seem to decide who should be arrested based on who lost the fight [and was “more injured”] or who called the police first.
If you are being investigated or are arrested for assault you need an attorney experienced in handling these types of cases. Trying to explain things to police without an attorney can only make your situation worse. Restaino Law, LLC has extensive experience defending these types of cases in the Westchester and New York City Courts and can help protect your rights.
There are three levels of assault charges:
Assault in the Third Degree – Penal Law 120.00 [Class A Misdemeanor]
The misdemeanor assault charge is the lowest level of assault. Someone who intentionally causes a physical injury to someone else can be charged with under this section of the penal law. If the complaining witness was merely caused discomfort and does not suffer an actual physical injury a defendant should not be charged under this penal law section. Frequently a criminal defendant will be charged with Assault in the Third Degree when the complaining witness suffered no physical injury. If you are being charged with this crime you need to speak to an attorney who can review the facts of the case and help determine whether a complaining witness’ injuries meet the threshold for you to be charged with assault in the third degree.
Assault in the Second Degree – Penal Law 120.05 [Class D Felony]
This is the next level assault charge – and is a felony. Among other things, someone who intentionally causes a serious physical injury to another person can be charged under this penal law section. Once again, merely causing bruising or discomfort does not equal the serious physical injury required to be charged as a felony assault. This is another crime that is frequently overcharged by the police and District Attorney’s office and the injury the complaining witness claims to have suffered needs to be reviewed to ensure it is a serious physical injury.
Assault in the First Degree – Penal Law 120.10 [Class B Felony]
This is the highest level assault charge. This level assault jumps all the way to a Class B felony and carries a substantial jail sentence if there is a conviction. To be charged under this section someone needs to intentionally cause serious physical injury by using a deadly weapon or dangerous instrument; seriously disfigure another person or permanently disable a part or organ of their body; recklessly cause serious physical injury to another person; or cause serious physical injury to someone while they are committing another felony.
Claiming self-defense is a common claim against these charges. If you have a valid claim of self-defense it is imperative that you engage an attorney to begin interviewing witnesses and preserving any evidence immediately. People are extremely reluctant to get involved in any type of court proceeding, and even if you believe that witnesses will come testify on your behalf at a future trial you can be surprised at how often they later change their minds. Having an aggressive attorney on your side from the beginning of the case will help to preserve your self-defense claim and can mean the difference between a conviction and an acquittal.
If you receive a phone call from the police department asking you to come and discuss an assault or you or a family member have been arrested on an assault charge you need to contact an experienced attorney right away. Alexander Restaino can help to defend against these charges and protect your rights. Feel free to contact us for a free consultation to discuss your case.