If you are facing an aggravated assault charge you could be in for a serious legal ride. This is not just an assault charge; it’s worse.
These types of crimes can follow you for the rest of your life. A prospective employer or landlord will see the charge when it pops up on your background check. Many will pass you on by because charges like that automatically mark you and present a bias – even if the person doesn’t realize that they are being swayed.
People just don’t want “someone like that” living on their property or working for them.
It isn’t fair but people are emotional. That’s just the way the world works.
If you do have an aggravated assault charge, you need a good criminal defense lawyer to help you. You need someone who will work for you to try to get your charge reduced or dropped entirely. The last thing you need following you around for the rest of your life is an assault conviction.
The Litvak Law Firm can help. Mr. Litvak has worked on several high-profile cases regarding aggravated assault as well as other charges. He is very adept at navigating the federal and state court system.
He will fight for you and work hard to make sure that your rights are protected.
Overview of Aggravated Assault
Assault is a common term that many people are familiar with, but what is aggravated assault? How is aggravated assault different from assault?
The legal definition of Aggravated Assault is “a criminal assault – a threat or physical act that creates a reasonable apprehension of imminent harmful or offensive contact with one’s person – involving an additional, aggravation factor, such as the intent to inflict serious bodily injury or the use of a dangerous weapon.”
Assault, or “simple assault,” is an intentional and willful threat or attempt to inflict injury on an individual. What this means is that the crime of assault can be committed without ever touching the individual. There does not have to be actual bodily harm or injury done to the person. The simple display of intent to injury or threat of force – any action that would make that person reasonably fearful or have the expectation that they are about to be harmed by you – constitutes assault.
Some examples of assault include:
- Drawing back your fist to hit someone
- Raising a glass as if to throw it at someone
- Raising your hand as if to slap someone
- Acting like you are going to pinch someone
- Making an aggressive motion toward someone so it appears you are about to attack them
Aggravated assault takes this a step farther by employing the use of a “deadly weapon” when threatening harm or injury. A deadly weapon can be any instrument that may be used to cause harm, serious impairment, or fatal injury.
Instruments that can be classified as a deadly weapon include:
- Baseball bat
Some of these may not be typically considered a deadly weapon, but within the context of the assault, a jury may choose to classify the instrument as a deadly weapon. Guns and knives are always deadly weapons.
Other situations where an assault can be elevated to aggravated assault include:
- Assault on a peace officer
- Assault on a police officer
- Assault on a firefighter
- Assault on a paramedic
- Assault on a pregnant woman
- Assault on a teacher
When members of certain classes that are protected such as those based on ethnicity, sexual orientation, race, disability, religion, or national origin, are assaulted it can be classified as a hate crime.
If the assault occurred while another crime was being committed, it is elevated to aggravated assault. Crimes, where this occurs, include:
- Attempted rape
- Attempted murder
The thing that makes aggravated assault so different from (and worse than) simple assault is the level of the threat of injury.
Federal Aggravated Assault
Assault is listed in the Criminal Resource Manual by the Department of Justice. Under CRM 1610. Assault – 18 U.S.C. 351(E) recognized assault but federal law does not have any provision for aggravated assault.
“As the statute does not provide for aggravated assaults, involving the use of deadly or dangerous weapons without inflicting personal injury, application of the attempted homicide provision should be considered in those cases where the penalty for simple assault appears unsuitable.”
This means that if you commit aggravated assault and it is considered a federal crime, you will likely not get a simple assault charge, but instead, one that is much more serious – and often carries harsh prison sentences.
Most assault and aggravated assault crimes are prosecuted at the state level, but sometimes the crime violates federal laws.
Assault cases that can be prosecuted in federal court include:
- Assault in a federal park
- Assault on a US ship
- Assault in a federal prison
- Assault in a federal building
Assault with a dangerous weapon and assault with intent to commit murder or a felony can both be prosecuted under federal law. However, they can also be elevated to more serious charges.
New York Aggravated Assault
Under New York law, aggravated assault is the most extreme charge of assault. This is because the primary element is the intent to do serious bodily harm, the attempt to engage in sexual activity with a minor who is younger than 11 years old, or the attempt to harm someone with a deadly weapon.
There are two elements that the prosecution must prove to get an aggravated assault conviction:
- Intent to cause serious bodily injury
- Dangerous instrument or deadly weapon
An aggravated battery charge usually accompanies the aggravated assault charge. This is an additional charge and can increase the accused’s sentence.
Several New York laws address aggravated assault.
A person is guilty of aggravated vehicular assault when he or she engages in reckless driving as defined by section twelve hundred twelve of the vehicle and traffic law, and commits the crime of vehicular assault in the second degree as defined in section 120.03 of this article, and either:
(1) commits such crimes while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine, or saliva made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law.
(2) commits such crimes while knowing or having reason to know that:
- his or her license or his or her privilege of operating a motor vehicle in another state or his or her privilege of obtaining a license to operate a motor vehicle in another state is suspended or revoked and such suspension or revocation is based upon a conviction in such other state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or his or her privilege of operating a motor vehicle in this state or his or her privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law;
(3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;
(4) causes serious physical injury to more than one other person.
(5) has previously been convicted of violating any provision of this article or article one hundred twenty-five of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty-five of this title; or
(6) commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes serious physical injury to such child. If it is established that the person operating such motor vehicle caused such serious physical injury or injuries while unlawfully intoxicated or impaired by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such serious physical injury or injuries, as required by this section and section and section 120.03 of this article.
A person is guilty of aggravated assault upon a police officer or a peace officer when, with intent to cause serious physical injury to a person whom he knows or reasonably should know to be a police officer or a peace officer engaged in the course of performing his official duties, he causes such injury by means of a deadly weapon or dangerous instrument.
A person is guilty of aggravated assault upon a person less than eleven years old when being eighteen years old or more the defendant commits the crime of assault in the third degree as defined in section 120.00 of this article upon a person less than eleven years old and has been previously convicted of such crime upon a person less than eleven years old within the preceding ten years.
Penalties for Federal Aggravated Assault
Since there is no federal law that addresses aggravated assault, the charges are typically elevated to assault with the intent to murder which can carry a prison sentence of 20 years. Assault with the intent to commit a felony carries a maximum sentence of 10 years in federal prison.
Penalties for Aggravated Assault in New York
While some sentences for aggravated assault do not result in prison time, but probation only, others do. You must retain good legal counsel as soon as possible – even if you suspect you might be charged.
Under New York law, the penalties for aggravated assault are:
- New York Penal Law – Article 120.04-A – Aggravated Vehicular Assault
- Class C Felony
- Minimum 1 to 2 years
- Maximum 15 years
- New York Penal Law – Article 120.11 – Aggravated assault upon a police officer or a peace officer
- Class B Violent Felony
- Minimum 5 years in prison
- Maximum 25 years in prison
- Class B Violent Felony
- New York Penal Law – Article 120.12 – Aggravated assault upon a person less than eleven years old
- Class E Felony
- Minimum 1 1/3 years
- Maximum 4 years
- Class E Felony
If the accused has a prior felony conviction within the preceding ten years, it could increase their prison sentence. The fact that the felonies were violent or non-violent in nature has no relevance to this determination.
Defenses for Aggravated Assault
It is important to remember that even if no one was hurt, you can still be charged with aggravated assault.
Your criminal defense attorney will review your case and ask you questions to determine the best course to take regarding your defense. Several defenses could be used, but it is important that it is credible and has solid evidential support.
Potential defenses for aggravated assault include:
- Lack of injury
- Defense of someone else
- No ability to inflict force on the victim
- No intent
- Wrongfully accused
- Mistaken identity
An aggravated assault charge in New York or at the federal level can lead to prison time or at the very least, probation. Getting a good attorney as soon as possible is the smart thing to do. You want someone who will work hard for you to protect your rights and make sure that you have the best possible outcome for your case. You should never try to face these charges on your own, especially in court.
When you need a lawyer to fight for you, one who has the experience, knowledge, and skill to handle your case, call New York criminal defense attorney, Igor Litvak of the Litvak Law Firm. Let him fight for you. Call 718-989-2908 today.