Assault Charges in Westchester and Putnam Criminal Courts

Assault is one of the more common offenses making up the Westchester and Putnam local Criminal Court calendars from day to day.  In its most common and least serious form, Assault in the Third Degree, the charge is a misdemeanor offense.

Levels of Seriousness

Assault comes in a few different flavors in New York Criminal Law from "simple" assault that is a misdemeanor and usually a quite manageable problem, all the way up to Assault in the First Degree, which is the same level of offense and seriousness as Attempted Murder, carrying severe mandatory prison sentences even for someone who has no prior criminal history.  Assault is mostly graded in seriousness according to the level of injury suffered by the person the Government has decided is the victim.  (There are a couple exceptions to this, most notable among them being a version of Assault in the Second Degree that makes it a felony assault to assault a police officer and cause ANY level of physical injury.)  But as a general rule, the greater the level of physical injury, the greater the seriousness of the assault, and the lesser the level of physical injury, the lesser the seriousness.

Physical Injury Requirement

New York has some special rules about the crime of assault, that require a little bit of background about the law to understand.  Reaching back into the dim memories of law school, here goes:  

The crime of assault is something different from the civil "tort" of battery.  Battery is not just the thing that makes a flashlight work.  In the law, "battery" means an unconsented to touching of one person by another.  Civil law (the law that relates to civil lawsuits, like say for personal injury) says that you have a right to be free from unconsented to touching by another person.  If someone touches you in any way without your consent, that is the civil "tort" of battery.  So if I were to walk up to you and poke you in the arm with my finger, that is actually a "battery".  If I did that, you could sue me, and you would win on the issue of my liability for battery.  The problem is that in civil law, liability is only part of the issue.  The issue of DAMAGES must then be assessed.  So if I were to poke you in the arm against your will, unless there was something very peculiar about the situation or unless I had super human strength, you aren't going to have any sensible damages.  There won't even be any pain.  Therefore, while you may well successfully sue me for battery, you will not get a penny's worth of money from me because you won't be able to demonstrate any damages.  Now obviously, if someone were to beat you up and put you in the hospital, you could sue for battery, be successful on the liability, and also show damages in terms of doctor bills.

OK.  Law school is now over.  So now let's get back to understanding New York State Assault law and the physical injury requirement.

So New York makes "assault" a crime.  Notice that the word is not "battery".  In order for assault to be a crime in New York you need to show an INTENTIONAL unconsented to touching (think of it as intentional battery) but in order to make out the CRIME, the Government needs to establish "PHYSICAL INJURY".  The term physical injury has been the subject of enormous controversy in New York Criminal Courts over the years, with endless cases that go all the way up to the Court of Appeals (New York's peculiarly named highest court).  The bottom line for our purposes here is that the New York Courts have decided that "physical injury" doesn't mean ANY physical injury at all.  Physical Injury means more than petty scratches or redness and must rise to a particular level associated with some reasonable amount of pain to create criminal liability in the person who caused it.

So, this means that simple "battery" in the civil law sense is not enough to make you a criminal in New York.  You actually have to do some damage.  Now the way the cases play out is a big confusing mess sometimes and you can find cases that appear to suggest that the same injuries both are and are not physical injury.  This is the nature of the law sometimes.  Like life, the law can be messy.  But if you are charged with assault in the third degree, and the person the Government has labeled the victim was not really injured in a noticeable way, you may find that your criminal defense lawyer will talk to you about "physical injury" and how that may be a defense.  This is what he or she is talking about.

Justification or Self-Defense

Most people are familiar with "self-defense" as a legitimate defense to an assault charge.  Indeed self-defense may be the most primal and fundamental concept in all of criminal law.  Every human has the right to defend himself against harm from others.  New York, just to difficult, calls this defense "justification" instead of self defense.  

Justification is probably the easiest defense to present to a jury as long as the facts can support it because it is such a universally accepted concept that everyone is familiar with and everyone supports.  If justification is your defense, the pool of potential good jurors if your case is to be tried is much larger than almost any other sort of defense.  My wife who is a criminal defense lawyer as well, once happily put a gruff retired NYPD Detective on a jury in a self-defense case and she wasn't disappointed.  The jury acquitted her client in about ten minutes.

Collateral Consequences to Assault Charges

Not only is assault a criminal charge, which can create difficulties in itself, but the violent aspect of the charge can create additional problems for employment or even living circumstances.  Often landlord tenant disputes will result in assault charges.  Accusations of violence can sometimes lead to eviction proceedings.  Accusations of assault also lead to Orders of Protection being issued which require people to stay apart.  This can be quite problematic where the parties are known to one another or work together or even live together.  Accusations of assault are often problematic for people in certain regulated professions such as home health aids, teachers, city workers, hospital workers, and more.

Outcomes of Assault Charges

For "simple" assault charges of assault in the third degree, where the injuries are not severe and where the accused has never been arrested before, there are frequently several possible non-trial outcomes that can be negotiated.  Among the better of these negotiated settlements is the Adjournment in Contemplation of Dismissal (ACD).  The ACD operates like a kind of Government sponsored benefit of the doubt in which you don't plead guilty to anything and the case is dismissed in six months as long as you don't get arrested for anything new during that time.  Also sometimes available when the ACD is not is a settlement involving a dismissal of the assault charges and a plea to a non-criminal violation called "disorderly conduct"  Several variations on these settlements exist that need to be reviewed with a criminal defense lawyer.  Of course trial is also a possible solution to assault accusations if trial is what you seek or if one of the settlement options you seek is not made available to you.

By: Don Murray, Esq.

Don Murray, one of the founding partners at Shalley and Murray, can help you defend your assault case in Westchester or Putnam County Criminal Court.

Don Murray, one of the founding partners at Shalley and Murray, can help you defend your assault case in Westchester or Putnam County Criminal Court.

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