Misdemeanor Assault in the Third Degree New York

Name of Offense

Assault in the Third Degree

New York Penal Code

120.00

Offense Level

Class A misdemeanor

Potential Jail Sentence

No minimum up to One Year at Rikers Island

Description of Offense

Assault might commonly be understood as "beating up" somebody, but it can be triggered by intentionally inflicting relatively modest physical injury on someone.  In order to make out a crime, in New York, the level of physical injury does have to meet a threshold level, but that level is not enormous.  Generally, a defense of self defense or justification is available to someone who otherwise committed the crime of assault, but did so in his own defense or in the defense of another, or in certain cases, in the defense of property.

Potential Settlements for First Arrest

Misdemeanor assault cases in New York City can play out in a wider range of ways than other types of misdemeanor cases.  Settlements involving non-criminal resolutions are less predictable.  It is for this reason that one of the more likely types of cases to go to trial is probably the assault case.  In the absence of a non-criminal offer from the Government, people with no criminal record often feel they have little to lose to by going to trial.

But when settlement is desired, the following sorts of non-criminal resolutions can sometimes be arranged:

(1) ACD, with community service and/or restitution to complaining witness for any medical bills.

(2) Plea to Disorderly Conduct (non-criminal offense) with fine and/or community service and/or restitution to complaining witness for any medical bills.

Note that settlements will typically also involve orders of protection in favor of the complaining witness, meaning that the accused will be required to stay completely away from the complaining witness (if the order of protection is "full") or simply avoid doing bad things to the complaining witness (if the order of protection is "limited").

Complicating Factors (There are many - Assault can be tricky) include:

(1) Severity of injury to the complaining witness

(2) Relationship of the complaining witness to the accused

(3) Domestic Violence context

(4) Lack of Citizenship - Offense involving violence can be a problem for immigration purposes

(5) History of prior violent behavior (regardless of whether resulted in conviction)

(6) Employment

(7) Family Court / Divorce / Custody situation

Practice Comments

Assault cases are treated highly individually and their outcomes will be very much related to the specific facts of the case.  A fight at a bar between two brothers at 2 AM where nobody is terribly hurt may not be treated the same, for example, as a case in which a stranger is accused of randomly approaching someone in the street and punching him in the face.  In the first example of the two brothers a non criminal resolution is extremely likely.  In the second example, a non-criminal resolution may not be so easy to come by.

 

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