Queens County Bar Association
Martindale Hubbell - Distinguished 2023

The Different Degrees of Assault Charges in the State of New York

Interviewer: What determines whether an assault is a first degree, second degree or third degree assault and what does that mean, first of all? What defines that and how could someone understand that a little bit better?

Martin Kane: Generally, there are three levels of assault and there are many different examples within each one, and I don’t think it’s a good idea to give you every different possibility. Essentially, there’s assault in the third degree, which is the lowest level; it’s a misdemeanor and it simply means that you intentionally caused injury to another person. The two elements are that you have to do it intentionally, and you have to do something that causes a physical injury. That’s the most common assault that we see in the typical street incidents: Somebody hits somebody, resulting in a bloody nose and that’s assault in the third degree.

Something That Is Defined As A Serious Physical Injury May Escalate Charges To A Class D Felony

When the injury becomes more serious, something that is defined as a serious physical injury, that raises it up to assault in the second degree, which is a much more serious charge; it’s what’s called a Class D violent felony, and has mandatory imprisonment. If you’re convicted, it gives you a serious violent felony record. What that means is that what you did caused a serious physical injury, such as a broken arm or that sort of thing. That, again, makes it a more serious crime. Second-degree assault can also be causing any injury with a dangerous weapon. A dangerous weapon can be almost anything. It can be a knife, it can be a gun, and those are common things. But you’ll also see far less common things. For instance, if you bang somebody’s head against the sidewalk while they were on the ground, then the sidewalk is a dangerous weapon. Just doing that and causing an injury will cause the assault to be upgraded to assault in the second degree.

The Maximum Sentence For A Class B Violent Felony Is 25 Years In Jail

The third general category is assault in the first degree, which raises it all the way up to what’s called a B violent felony. What that means is if you’re convicted of that, the maximum sentence that you can get is 25 years in jail. More important is the minimum sentence: If you’re convicted, the minimum sentence that the judge can give you is five years in prison, and not up to five years but a minimum of five years in jail. There are various types of assault in the first degree. The most common one is using a dangerous weapon and causing a serious physical injury. You now have assault in the first degree. Or if you cause even more serious physical injury such as the loss of an eye or a fractured skull by using a dangerous weapon, that makes it assault in the first degree and that really puts you in a situation where if you go to trial and lose that case, you’re going to be going to jail for an awfully long time. There are also various categories of what are called gang assaults, but that’s for a different topic.

An Assault Charge Cannot Be Dropped Without The Consent Of the Court And The District Attorney

Interviewer: Can the alleged victim just drop the case?

Martin Kane: No. He cannot just drop the case because he is not the person bringing it. The entity bringing it is the state of New York through the district attorney. So, without the district attorney’s consent and the court’s consent, no, you cannot just drop a charge. Now, commonly, if two guys get in a brawl and one beats up the other one, or if they both beat up each other and they both get arrested, it’s pretty common for the parties to come into court and each one says, “We don’t want to proceed” and the district attorney and the court will let them drop the case.

A Simple Assault Charge May Be Dropped But Instances Of Domestic Violence Are Mostly Prosecuted

Even when it’s only one party who’s arrested, if a complainant to the minor assault case tells the district attorney and comes in and tells the court that he doesn’t want to go ahead with the case, that he and his ex-friend are now friends again, or for whatever other reason, generally the district attorney and the court will allow it to be dropped. The exception to that are domestic violence assault cases. In those cases, almost never will the complainant be allowed to withdraw the charge. Even when two people are arrested, the husband and wife, for instance, and they come into court and both of them say, “Look, we just had a little misunderstanding and we want to drop the charges,” the district attorney will not allow them to just drop the charges. And they will usually require both of them to have something done where there are limited orders against both of them. As strange and unfair as it may seem, a happily married couple who has even a minor dispute, with no injuries to either of them, can be forced to live apart, with no contact whatsoever, unless they agree to the district attorney’s demand that they agree to limited orders of protection against each other, and further agree to keep the cases open against each other for a specified period of time, usually a year.

Contact The Law Office of Martin D. Kane at (718) 793-5700 regarding your assault case.

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