Assault and the lessor offenses of menacing and hazing can have serious consequences and are routinely charged as felonies. An assault is carried out by a threat of bodily harm coupled with a present and apparent ability to cause the harm.
Only experienced criminal defense attorneys will have the requisite knowledge concerning medical reports, expert witnesses both for the prosecution and the defense, and the effects certain testimony will have on jurors. The following are breakdowns of the most commonly charged assault related offenses in New York.
Albany Assault in the First Degree (PL 120.10)
A charge of assault in the first degree in Albany can come about in four scenarios.
- First, with the intent to commit serious physical injury, an individual uses a deadly weapon or dangerous instrument and causes such injury to a person or a third person.
- Second, with the intent to disfigure another person seriously and permanently or to destroy, amputate or disable a member or organ, an individual causes such injury to another or a third person.
- Third, with depraved indifference to human life, an individual recklessly engages in conduct which creates a grave risk of death to another, and thereby causes serious physical injury to another, or
- In the course of and in furtherance of the commission of a felony or of immediate flight therefrom, an individual or his accomplice causes serious physical injury to another.
The common element in these four scenarios is “serious physical injury.” This is defined by PL 10 as physical injury which creates a substantial risk of death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.
Assault in the first degree is a Class B felony and carries a potential sentence of up to 25 years of incarceration. (PL 70)
Assault in the Second Degree (PL 120.05) in Albany
The lessor charge of assault in the second degree can come about in any of 13 scenarios. What sets this apart from first degree assault is the intention by the perpetrator to cause “serious physical injury” without the use of a deadly weapon or dangerous instrument or to cause “physical injury” with a deadly weapon or dangerous instrument. “Physical injury” is defined as impairment of a physical condition or substantial pain. (PL 10).
Assault in the second degree also encompasses situations where an individual prevents law enforcement or other first responders from doing their jobs, and causes physical injury during the process. It can also be charged where an individual obstructs a social services worker from conducting an investigation, and injures the worker in the process of the obstruction.
Another example where assault in the second degree can be charged is where an individual recklessly causes serious physical injury to another by use of a deadly weapon or dangerous instrument. This differs from assault in the first degree, in that it charges reckless conduct as a culpable mental state, an easier burden for the prosecution to meet. The term “recklessly” applies when a person, who is aware of a substantial and unjustifiable risk that such result will occur or that such a circumstance exists, and consciously disregards the substantial and unjustifiable risk.
Assault in the second degree is a Class D felony and carries a sentence of incarceration of up to 7 years.
Assault in the Third Degree (PL 120.00) in Albany
Assault in the third degree is distinguishable from first and second degree assault in that it includes “criminal negligence” as a standard of culpability—one that is easier to prove than intentional or reckless conduct. A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such a result will occur or that the circumstance exists. The risk must be of such a nature and degree that the failure to perceive it constitutes gross deviation from the standard of care that a reasonable person would observe in the situation. (PL 15.10). An example of criminal negligence might be a mother leaving her child in the care of her boyfriend despite outwardly obvious signs that the child is being abused or neglected.
Assault in the Third Degree is a Class A Misdemeanor and carries a possible sentence of I year imprisonment or 3 years of probation, and with a fine of $1,000.
Assault with a Weapon in Albany
Assault with a weapon falls under Assault in the first and second degree, both covered above.
Depending on the severity of the alleged assault, a possible prison sentence can range from 1 year to 25 years. People finding themselves charged with assault must hire skilled criminal defense attorneys to defend them. Nave + Associates (formerly Anelli Nave) has such attorneys and we take a team approach to all of our cases to best serve the client’s needs.