New York Assault Attorney

After a fight in New York, the police complaint usually tells the story of whoever called 911, and they often don’t ask for your side until later. The caller’s account alone may support a misdemeanor assault charge with up to 364 days in jail or a felony with up to 25 years in prison. An early defense puts your account in front of the prosecutor while the charge may still change.

Attorney Mehdi Essmidi spent years as a prosecutor, reading police paperwork and deciding which charges an assault case could carry. Now he defends people accused of assault and related offenses, knowing which details hold up a felony and which may fall apart under questioning. Our New York City attorneys build each defense around what he learned on the other side.

If you’ve been arrested or charged with assault, contact The Law Offices of Mehdi Essmidi for a free initial consultation.

Assault and Battery Under New York Law

New York prosecutes what other states call battery (intentional physical contact or harm) under its assault statutes, so there’s no separate battery charge.

New York Assault Laws

One fight may be charged as assault in the third, second, or first degree, depending on how badly someone was hurt, what the accused intended, and whether a weapon was involved. A defense attorney may dispute any facts the prosecution uses to determine the degree.

Assault in the Third Degree

Third-degree assault means intentionally or recklessly injuring another person, or injuring someone through criminal negligence with a deadly weapon or dangerous instrument. It’s a Class A misdemeanor carrying up to 364 days in jail.

Assault in the Second Degree

A minor injury may be charged as assault in the second degree, a Class D felony with up to 7 years in prison, because of who was hurt. Injuring a police officer, firefighter, nurse, or other protected worker to stop them from doing their job qualifies, and so does intentionally injuring a transit worker on duty or someone 65 or older when the accused is more than 10 years younger.

Prosecutors also bring second-degree assault for injuring anyone while committing a felony, for causing a serious physical injury someone set out to cause, and for intentionally hurting someone with a deadly weapon or dangerous instrument.

Assault in the First Degree

First-degree assault, under New York Penal Law § 120.10, is a Class B violent felony with up to 25 years in prison. It applies when a serious physical injury is caused on purpose with a deadly weapon or dangerous instrument, recklessly through conduct showing depraved indifference to human life, or during the commission or attempted commission of a felony.

Vehicular Assault in the Second Degree

Driving drunk or impaired by drugs and seriously injuring someone is vehicular assault in the second degree, a Class E felony with up to 4 years in prison.

Vehicular Assault in the First Degree

Vehicular assault in the first degree is a Class D felony with up to 7 years in prison. It’s second-degree vehicular assault plus at least one aggravating factor, such as:

• The driver’s blood alcohol content (BAC) is 0.18% or higher.
• The driver has a prior conviction for driving while intoxicated (DWI) within the past 10 years.
• The incident results in serious physical injury to more than 1 person.
• A child 15 or younger was a passenger and suffered a serious physical injury.

Aggravated Vehicular Assault

A driver who commits second-degree vehicular assault while driving recklessly, with at least one of the first-degree aggravating factors present, may be charged with aggravated vehicular assault, a Class C felony with up to 15 years in prison.

Assault on a Peace Officer

Seriously injuring a police officer, peace officer, firefighter, or emergency medical services (EMS) professional to stop them from carrying out a lawful duty is a Class C felony with up to 15 years in prison.

Gang Assault

New York grades gang assault by the accused’s intent and the resulting injury:

Gang assault in the second degree

This is a Class C felony. It applies when someone, aided by 2 or more others who are actually present, intends to cause physical injury but causes serious physical injury.

Gang assault in the first degree

This is a Class B felony. It applies when someone, aided by 2 or more others who are actually present, intends to cause serious physical injury and causes it.

Hate Crimes Involving Assault

An assault may be charged as a hate crime, at a higher sentencing level, when the victim was chosen because of what the accused believed or perceived about the victim’s race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability, or sexual orientation.

Orders of Protection in Assault Cases

In many New York assault cases, the judge may issue an order of protection that bars the accused from contacting the alleged victim in person, by phone, by mail, or through someone else.

Violating an Order of Protection in New York

Violating an order of protection is usually charged as criminal contempt in the second degree, a Class A misdemeanor. Threats, repeated calls, or physical contact may raise the charge to criminal contempt in the first degree, a Class E felony. A violation that causes physical injury may be charged as aggravated criminal contempt, a Class D felony.

Assault in Domestic Violence Cases

Many misdemeanor assault arrests between strangers end at the precinct with a desk appearance ticket and a court date, but a push against a family becomes a domestic violence case in New York.

Family or household members include a spouse, an intimate partner, a relative, and someone the accused shares a child with.

An arrest in a domestic violence case usually goes through central booking. The judge may issue an order of protection at arraignment.

Penalties for Assault Convictions in New York

The sentence for an assault conviction depends on the degree of the charge, the facts of the case, and your criminal record.

• Misdemeanor Assault: A third-degree assault conviction may bring up to 364 days in jail, 2 or 3 years of probation, or a conditional discharge, along with a fine of up to $1,000. The court may also order you to repay the victim’s medical expenses.

 

• Felony Assault: Second-degree assault, a Class D violent felony, carries 2 to 7 years when the judge imposes prison, and some cases end with probation or a shorter jail term instead. First-degree assault, a Class B violent felony, requires a prison term of 5 to 25 years. A felony assault conviction may also bring a fine of up to $5,000 and restitution.

Defenses Against Assault Charges in New York

• Self-Defense: New York lets you use the physical force you reasonably believe is necessary to protect yourself or someone else from unlawful force that’s being used or about to be used. Once self-defense comes up at trial, the prosecution has to disprove it beyond a reasonable doubt.
• Lack of Intent: Many assault charges require proof that you intended to cause an injury, and others require proof that you acted recklessly.
• False Accusations or Mistaken Identity: People are sometimes falsely accused because of personal disputes, revenge, or mistaken identity. A defense attorney may challenge witness credibility and present evidence supporting your innocence.
• Alibi Defense: Evidence that you were somewhere else at the time of the alleged assault may be a strong defense.
• Insufficient Evidence: The prosecution must prove beyond a reasonable doubt that an assault occurred. Weak evidence, such as missing medical records, unreliable witness testimony, or inconsistencies in the alleged victim’s statements, may support an argument for dismissal or acquittal.

Contact Us for a Free Consultation

Mehdi Essmidi spent years as a prosecutor, so he knows where an assault case is strong and where it rests on a thin injury claim, a disputed self-defense account, or a felony upgrade the evidence can’t support. If you or a loved one is facing assault charges in New York, contact our law office today for a free consultation.

Frequently Asked Questions

What should I do if I am charged with assault in New York?

Call a criminal defense attorney before you explain the fight to anyone else. Texting the person who made the complaint may violate an order of protection. Anything you post online or tell the police may end up in the prosecution’s file, even when you meant to clear things up. A New York assault attorney can tell you where your case stands and what comes next.

Will I spend the night in jail after an assault arrest in New York City?

Many people arrested for misdemeanor assault in NYC go home from the precinct with a desk appearance ticket, a written order to show up in court on a set date.

Officers may skip the ticket and send the case through central booking for a felony charge, an injury to a family or household member, or a case where a judge may need to consider an order of protection.

A case that goes through central booking usually reaches a judge for arraignment within about 24 hours, and the judge decides then whether you’re released while the case is pending and on what terms.

Can I be charged with assault if no one was hurt?

Assault charges in New York require a physical injury, which the Penal Law defines as impairment of physical condition or substantial pain.

A shove or a slap that leaves no injury is usually charged as harassment in the second degree, a violation with a maximum of 15 days in jail. Prosecutors may still bring attempted assault when they claim the person tried to cause an injury.

Some third-degree cases rest on a complaint of pain with no medical records, and a defense attorney may challenge whether the injury meets the legal standard.

What is considered a serious physical injury under New York law?

Under New York law, a serious physical injury is one that creates a substantial risk of death, causes death, or causes serious disfigurement, impairment, loss, or impairment of an organ’s function. An injured person’s medical records often decide whether a charge stays a misdemeanor or rises to second- or first-degree assault.

Why is my assault charge a felony when the injury was small?

A minor injury may be charged as assault in the second degree, a Class D felony, depending on who was hurt or what was used. Any object used in a way readily capable of causing serious injury, from a glass bottle to a car, may count as a dangerous instrument and raise a third-degree case to a felony. Prosecutors have to prove the injured person’s job, the object, and what the accused meant to do, and a defense attorney may challenge any of them.

Can I claim self-defense in an assault case?

Yes, even if you’re the one who was arrested. When both people threw punches, whoever called 911 first or had the more visible injury may become the complainant. Self-defense may apply if you reasonably believed you were facing physical harm and used the force you believed was necessary to protect yourself. The prosecution will likely challenge your claim, and a New York assault lawyer can help.

Can a misdemeanor assault charge be dismissed or reduced?

A third-degree assault case may end without a criminal conviction through an adjournment in contemplation of dismissal (ACD) or a plea to harassment in the second degree. An ACD puts the case on hold for 6 months, or 1 year when it involves a family or household member. If the prosecutor doesn’t bring it back in that time, the charge is dismissed and sealed.

A harassment plea leaves a conviction for a violation, which isn’t a crime in New York, and the police and prosecutor records of the arrest are sealed. Whether either outcome is available may depend on the injury, the strength of the evidence, and your record.

Can an order of protection keep me out of my own home?

Yes. A full order of protection may require you to stay away from the protected person’s home, and if you live together, you may have to leave even an apartment you own or lease. A limited order bars you from harassing, threatening, or harming the protected person, and you may keep living together and stay in contact. The judge sets the type of order at arraignment, and a defense attorney may ask the court to modify a full order when the facts support it.

What happens to my gun license after an assault arrest in NYC?

You have to report an assault arrest to the NYPD License Division immediately, and the division may suspend your handgun license once it learns of the arrest. Handguns on a suspended license are no longer licensed and must be vouchered with the police.

A judge who issues a temporary order of protection in the criminal case may also suspend the license and order that you surrender every firearm. You may challenge an interim suspension in writing within 30 days of the notice, and once the criminal case ends, you have 30 days to request a hearing on the final determination. The Law Offices of Mehdi Essmidi also handles NYC gun license suspensions and appeals.