Assault

July 5, 2013

The Zealous Prosecution of New York Gun and Firearm Cases: When an Injury may not be Caused by Criminal Conduct

Everyone is scared of guns. After all, some horrific incidents have corroborated why many lawmakers in New York believe the strict firearm laws of the New York Penal Law are necessary. While there is little doubt that firearms in the wrong hands are overwhelmingly dangerous and laws must be enacted and enforced to protect the public and prevent the misuse of weapons, a blanket fear of firearms does not necessitate over zealous prosecutions. Just as the owner of a lawfully registered out of state firearm can be charged with a felony for attempting to legally check his weapon at a NYC airport (JFK Airport, for example), other individuals may be charged with weapon crimes that really are not consistent with the hyper-technical conduct of the accused.

In People v. Evans, 2013 NY Slip Op 1950 – NY: Appellate Div., 4th Dept. 2013, a judge convicted the defendant for Assault in the Second Degree where the crime was based in the reckless possession of a weapon. There, the gun in question was a saw offed shotgun that accidentally misfired and struck another person. Pursuant to New York Penal Law 120.05(4), it is punishable by as much as a seven years in prison if you “recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.” The question before the Appellate Court was not whether the possession of the weapon in and of itself was illegal, but whether or not it was used in a reckless manner resulting in the serious physical injury.

June 10, 2013

Does Merely Asserting “Substantial Pain” Satsify the Prosecution’s Burden to Sustain a Complaint for Third Degree Assault (NY PL 120.00)

by Jeremy Saland

You slap someone in the face. Certainly its not nice, but is it a Third Degree Assault in New York? You punch someone in the gut. Again…not nice…but is it an Assault in the Third Degree? You kick someone in the ribs (maybe they deserved it and you were merely defending yourself this time!). Ouch….but should you be arrested for violating New York Penal Law 120.00(1)? An “A” misdemeanor that will smack you with a lifelong criminal record, while you may need a criminal lawyer to counsel you through the criminal process in New York, you certainly don’t need a criminal defense attorney to tell you that an arrest for PL 120.00 is potentially a life changing matter.

Whether you are issued a New York City Desk Appearance Ticket (commonly called a DAT or an appearance ticket) for PL 120.00 or you spend 24 hours waiting in jail to see a judge, the law of Third Degree Assault is fairly straight forward on its face. That is, if you intentionally (there is also a reckless provision) cause physical injury to another person, you are guilty of misdemeanor Assault. Seems fairly easy for a prosecutor to prove, right? While it certainly may be fairly simple for a New York City (or any jurisdiction for that matter) Assistant District Attorney to establish in a complaint or prove beyond a reasonable doubt at trial, not everything is as easy as it seems.

December 11, 2012

Challenging a New York Arrest for a Strangulation Crime: Reduction of NY Penal Law 121.12 to NY Penal Law 121.11

by Jeremy Saland

Since the New York State legislature created new violations of the Penal Law and criminal code involving Strangulation and Related Crimes, prosecutors throughout New York City and the suburbs have been bringing these cases at very serious clips. It seems that any time there is allegation of one party grabbing, pushing or even touching the neck area of another person, prosecutors charge either the misdemeanor crime of Criminal Obstruction of Breathing or Blood Circulation (New York Penal Law 121.11) or felony Second Degree Strangulation (New York Penal Law 121.12). While Strangulation is a more serious offense than Obstruction of Breathing or Blood Circulation, both crimes (even mere allegations) can destroy the life and career of any professional. Further, because of the nature of the crimes, orders of protections (restraining orders) are routinely granted by criminal court judges that keep families a part. Make no mistake. While these crimes are very real offenses and ones that prosecutors, the NYPD and all branches of law enforcement should take seriously, an accusation or allegation by law enforcement does not mean you actually committed or are guilty of these or any offense.

While this blog entry will generally address the crimes of Obstruction and Strangulation, the entry will briefly analyze a legal decision out of the Appellate Division Fourth Department that addressed a critical distinction between NY PL 121.11 and NY PL 121.12. The reduction of a felony Strangulation in the Second Degree to a misdemeanor Obstruction of Breathing or Blood Circulation can mean the difference between your family visiting you in some upstate correctional facility and you remaining free of any incarceration.

November 3, 2012

Using a Belt to Strike a Child: Can Your Actions Constitute Assault, Endangering the Welfare of a Child & Weapon Possession?

by Jeremy Saland

Any crime that involves a child is often given extra scrutiny by prosecutors, judges and even New York criminal lawyers. Compounding matters, if that crime also includes allegations of Assault and Criminal Possession of a Weapon, there is a real concern for the accused whether or not the complaint is baseless or completely accurate in its totality. Not only are Endangering the Welfare of a Child (New York Penal Law 260.10), Third Degree Assault (New York Penal Law 120.00) and Fourth Degree Criminal Possession of a Weapon (New York Penal Law 265.01) misdemeanors punishable by up to one year in jail (Rikers Island or the Westchester County Jail, for example), but where the crime involves a family member, Orders of Protection can bar you from your home and from any contact with your family.

In People v. Jose Barreiro, 2012KN013315, NYLJ 1202576305750, at *1 (Crim., KI, Decided October 18, 2012), the defendant was charged with multiple crimes including those listed above. Whether the purpose of Barreiro’s alleged actions was to ultimately discipline his child or merely to just hurt him, is of potentially little consequence. It was alleged that the defendant struck his twelve year old son with a belt. More specifically, Barreiro struck his son in the legs causing brusing and swelling. The complaint further claimed that these actions caused substantial pain to the child and that the child feared future physical injury.

October 2, 2012

Self Defense in a New York Assault Case: Justification & Initial Aggressor

by Jeremy Saland

New York Assault arrests easily make up the majority of violence related crimes in New York as a singular group of offenses. Whether the crime is a Domestic Violence offense, a bar fight constituting Third Degree Assault, a misdemeanor Desk Appearance Ticket or a more serious Second or First Degree Assault where either a weapon is used or an alleged victim suffered a serious physical injury, Assault crimes expose those accused to potentially long terms of incarceration. Because of this, it is critical for your New York Assault lawyer or criminal defense attorney to identify potential defenses and pursue the same as soon as he or she is retained. After all, witnesses may forget what happened, defensive injuries may heal over time and other evidence may just be lost.

Before addressing the affirmative defense of “self defense,” also called the defense of “justification,” in a New York Assault arrest, I want to briefly address New York Assault law. Generally, the basic idea or concept of a New York Assault case is that you intentionally (there are reckless crimes as well) cause physical injury to another person. These actions are the elements of Assault in the Third Degree (New York Penal Law 120.00). What enhances the misdemeanor offense to the felony crimes of Second Degree Assault (New York Penal Law 120.05) or First Degree Assault (New York Penal Law 120.10) are such factors as the nature of an injury being classified as “serious physical injury” or the use of a dangerous instrument or weapon during the crime.

September 14, 2012

Arrested for Domestic Violence in New York: Understanding the Process, Crimes and Procedures

by Jeremy Saland

New York Domestic Violence crimes are some of the most serious offenses found anywhere in the criminal law (and rightfully so). Well beyond allegations of Assault, these crimes cover a wide spectrum of conduct. Regardless of the offense charged, the significance of a New York Domestic Violence arrest or accusations is evident in its handling by the branches of law enforcement. For example, the New York City Police Department (NYPD) has specially trained Domestic Violence officers that work in their respective precincts directly with those who are victims of Domestic Violence crimes. In the City’s District Attorney’s Offices (Manhattan, Brooklyn, Queens, etc.), prosecutors are either specially trained to manage Domestic Violence cases or they may be assigned to a Domestic Violence unit.

As important as it is for law enforcement to investigate, arrest and prosecute offenders of abuse, an allegation against a “family member” does not mean the believed crime actually occurred. As much as we are all quick to judge what we may read in the news and assume that an accused is a batterer of a spouse, child, etc., it is imperative to recognize one is innocent until proven otherwise. Regardless of the crime, sometimes it takes your wrongful arrest or a false accusation against a family member before this principle hits home.

August 10, 2012

Defending a New York Felony Assault Arrest: Small Scars, Lacerations & Second Degree Assault (NY PL 120.05)

by Jeremy Saland

New York Assault lawyers and criminal defense attorney who routinely practice in New York’s criminal courts see Assault prosecutions involving the entire spectrum of injuries. For example, common Third Degree Assault (New York Penal Law 120.00) allegations occur after two people get into a fist fight. Maybe one person took a worse lickin’ and received a punch to a jaw that left him soar and bruised. Alternatively, during another melee a spouse had scratches to his or her neck or arm with some redness. As long as prosecutors can establish intent to cause a physical injury and the actual suffering of a physical injury (generally described as substantial pain and illustrated throughout numerous blog entries in Saland Law PC’s NewYorkCriminalLawyerBlog.Com), NY PL 120.00 is proveable. What is more difficult, however, is establishing the level of injury required to achieve an arrest, indictment and conviction for Second Degree Assault according to New York Penal Law 120.05. In this felony level Assault, the degree of injury is defined as serious physical injury.

Whether one deems it fortunate or unfortunate, prosecutors often attempt to push the law in a manner favorable to their goals. Sometimes this comes in the form of “overcharging” a defendant for a crime to help achieve a plea. Regardless, if prosecutors cannot prove the level of injury required by statute, then the Assault charge should either be reduced or dismissed. In People v. Ricky Trombley, 104135, NYLJ 1202564193232, at *1 (App. Div., 3rd, Decided July 12, 2012), an Appellate Court did just that.

August 6, 2012

UPDATED – Stephanie Pratt’s Boyfriend Faces Possible New York Felony Assault Charges: Trumped Up Arrest Charges or Viable Case Against Julien Chabbott?

by Jeremy Saland

In what appears to be a failed low speed getaway, the boyfriend of dime-a-dozen reality “star” Stephanie Pratt was arrested yesterday for allegedly rolling over the foot of a police officer in Manhattan. According to earlier reports, Julien Chabbott was charged with Second Degree Assault (New York Penal Law 120.05(3)), Vehicular Assault (New York Penal Law 120.03) and Obstruction of Governmental Administration (New York Penal Law 190.50). However, it appears that only the misdemeanor crimes of Third Degree Assault and Obstruction of Governmental Administration are being prosecuted. While I am confident Manhattan District Attorney Cyrus Vance, Jr. did not envision he would be juggling cases of such magnitude upon being elected as Manhattan’s chief prosecutor, I am equally confident he and his office will get to the bottom of this allegedly bone-headed move (just accept the ticket, man!!!).

As a preliminary matter, Chabbott apparently lacks the minimum level of common sense one would expect from the average self-absobred twenty-something who can only afford a zip car. If a police officer is issuing you a ticket, don’t get in his or her face, grab the ticket from his or her hand or…wait for it…drive away as he or she is standing immediately next to or in front of your car. While stupidity is fortunately not a crime, Chabbott’s alleged charades may be. So, instead of sleeping at nearly 1:00 am, let me quickly and briefly dissect some of the potential charges.

July 9, 2012

Second Degree Harassment: What Can Happen to an NY PL 240.26 Charge When Your Initial Arrest was Unauthorized

by Jeremy Saland

While some New York criminal lawyers, prosecutors and judges use the term “fruit of the poisonous tree,” the wording is not nearly as important as the concept in criminal law. That is, if initial conduct by a police officer is unauthorized, for example, the recovery of contraband or property may not be used against the accused. On a similar note, if the police made an unlawful arrest and you refuse to be handcuffed during that unauthorized arrest, then the charge of Resisting Arrest, pursuant to New York Penal Law 205.30, is not sustainable (Keep in mind that such a determination is not always clear. Certainly, resisting at the time of your arrest because you believe that the arrest is unauthorized is not a smart thing to do!). This blog entry will deal with a similar variation of this theme while addressing the violation of Harassment in the Second Degree pursuant to New York Penal Law 240.26(1).

By way of background, and before addressing the legal decision on this topic, a person is guilty of Harassment in the Second Degree (NY PL 240.26) if and when that person has the intent to harass, annoy or alarm another person and, according to subsection one, that person strikes, shoves, kicks or subjects that other person to any physical contact. Further, attempting or threatening to do the same is sufficient to form the basis of Second Degree Harassment.

June 14, 2012

Drake – Brown Beatdown: Possible Criminal Arrests & Charges After Club WIP Bar Fight in Manhattan

by Jeremy Saland

According to reports, rapper-singers Drake and Chris Brown, along with their respective entourages, OD’d in testosterone and supposed manhood at Manhattan’s club W.I.P. Whether it was the result of one too many cocktail, it is alleged that Drake taunted Brown over the former’s “between the sheets dancing” with the over-hyped songstress, Rihanna. If reports are true, the sensitive Brown and sophomoric Drake engaged in bottle tossing mayhem that resulted in what appears to be some fairly serious injuries. Although this blog entry will not address the civil liability of SoHo’s club W.I.P. or the two Top 40 knuckleheads for the alleged brawl, there certainly could be arrest charges in Manhattan should the police and prosecutors be able to identify individuals and their conduct during the “chivalrous bout” over Rihanna’s honor.

If the police can identify the person who instigated the melee as well as those who were involved in and advanced the shenanigans, prosecutors must also be able to establish their respective actions. Not addressing all of the issues that would arise in a prosecution, what are some of the charges a defendant could face should everything fall into place for the Manhattan District Attorney’s Office?