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Aggravated Assault

Assault & Threat Crimes

Assault by Auto

Disarming Police or Law Enforcement Officer

Disorderly Conduct

Domestic Violence

Harassment

Hindering Apprehension or Prosecution

Obstructing the Administration of Justice

Resisting Arrest

Restraining Orders

Simple Assault

Stalking Offenses

Terroristic Threats

Violation of a Restraining Order

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Aggravated Assault

Aggravated Assault Law

There are a variety of factual scenarios in which a complaint and indictment for aggravated assault can arise in NY.

A person is may be guilty of aggravated assault if (s)he:

(1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury; or

(2) Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(3) Recklessly causes bodily injury to another with a deadly weapon; or

(4) Knowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, at or in the direction of another, whether or not the actor believes it to be loaded; or

(5) Commits a simple assault as defined in subsection a. (1), (2) or (3) of this section upon:

(a) Any law enforcement officer acting in the performance of his duties...; or

(b) Any paid or volunteer fireman acting in the performance of his duties...; or

(c) Any person engaged in emergency first-aid or medical services acting in the performance of his duties...; or

(d) Any school board member, school administrator, teacher, school bus driver or other employee; or

(e) Any employee of the Division of Youth and Family Services; or

(f) Any justice of the Supreme Court, judge of the Superior Court, judge of the Tax Court or municipal judge; or

(6) Causes bodily injury to another person while fleeing or attempting to elude a law enforcement officer  or while operating a motor vehicle in violation; or

(7) Attempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury; or

(8) Causes bodily injury by knowingly or purposely starting a fire or causing an explosion; or

(9) Knowingly, under circumstances manifesting extreme indifference to the value of human life, points or displays a firearm at or in the direction of a law enforcement officer; or

(10) Knowingly points, displays or uses an imitation firearm, at or in the direction of a law enforcement officer with the purpose to intimidate, threaten or attempt to put the officer in fear of bodily injury or for any unlawful purpose.

 

Assault & Threat Crimes

 

It may have been a misunderstanding, an angry comment, a careless statement, or a maliciously fabricated charge. But, if you have been accused of making terroristic threats in New York you may face serious consequences. Simple assault charges escalate quickly to aggravated assault if the dispute involved a New York police officer, the use of a weapon, or serious bodily injury. Depending on the degree of offense you are charged with, you may face prison, jail time, probation, or a restraining order. 

 

Before making any statement to police, contact a lawyer

You can only harm your case by talking to police, prosecutors, your accuser, or anyone other than your New York Criminal Defense lawyer. If you have been arrested or realize you are going to be charged with aggravated assault or a threat crime, exercise your Constitutional right to be silent until you have talked with an attorney. If you would like to speak with a member of our New York Criminal law firm,  contact our office and arrange a consultation with one of our experienced Criminal Defense lawyers.

 

Defenses to Assault Charges: Self-defense and unforeseeable injury

There are several defenses to charges of assault. Did you have reason to feel you were in danger, and acted in self-defense? Was there a way you could have foreseen that your action would cause an injury? Our attorney will examine all aspects of your case in determining the most effective defense strategy. Often a second-degree assault charge can be negotiated down to third-degree assault.

Our lawyers are prepared to defend our clients against all types of assault charges, including cases involving the following factors:

Terroristic threats Harassment Stalking Reckless endangerment Simple assault Aggravated assault Internet

Disarming a police officer Leaving the scene of an accident involving serious injury Battery Domestic assault or violation of a restraining order Juvenile assault Robbery/armed robbery Assault by Auto

 

Assault By Auto

Assault by Auto Charges

An assault by auto case can come in the form of a disorderly persons offense, fourth degree crime, third degree crime or even a second degree crime. This can be a very serious offense with significant jail exposure and requires the involvement of an attorney experienced in both traffic law and criminal defense.

 

Assault by Auto Law

In order for an individual to be found guilty of assault by auto he or she must:

(1) be the operator of a car or other motor vehicle; (2) engage in reckless conduct; (3) cause an accident; and (4) cause injury to another as a result of this conduct. Reckless conduct involves actions manifesting extreme indifference to the welfare of others and can be established through, for example, speeding or reckless driving under Recklessness is conclusively established for purposes of assault by auto where an accused is convicted of drunk driving or refusal to submit to a breath test . It is therefore very important that a lawyer be skilled in NY dwi when handling an alcohol related assault by auto case.

 

Disorderly Persons Offense

Assault by auto is a disorderly persons offense where the reckless conduct results in "bodily injury". If an individual consciously disregards the risk of injury to others and this results in some form of injury to another, then he can be convicted of a disorderly persons offense of assault by auto. Bodily injury is essentially established if a person suffers any form of injury even a contusion or cut. A disorderly persons offense involves up to six (6) months in jail, fines, penalties and probation.

 

Fourth Degree Crime

If an individual operates an automobile recklessly and it results in "serious bodily injury" then he can be convicted of Fourth Degree assault by auto. The distinction between a fourth degree and disorderly persons prosecution hinges on the extent of the injury resulting to others; if the injury is "serious" then it is a Fourth Degree charge whereas the case involves a disorderly persons offense where the situation is limited to simple bodily injury. Where an individual is convicted of Fourth Degree assault by auto, he is exposed to up to eighteen (18) months of jail.

 

Third Degree Crime

Assault by auto is a Third Degree criminal offense where "serious bodily injury" results from a DWI related accident. In other words, if an individual is involved in a dwi related accident which results in serious injury to another, he can be convicted of Third Degree assault by auto. A Third Degree offense involves jail of five (5) to ten (10).

 

Second Degree Crime

A third degree assault by auto is enhanced to a Second Degree offense when it is committed in a School Zone. Second Degree assault by auto involves ten (10) to twenty (20) years of jail exposure.

 

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Disarming Police or Law Enforcement Officer

 Attempting to Disarm a Police Officer 

An arrest, charge or indictment for disarming or attempting to disarm a police officer is an extremely serious offense under the New York.

 

Disarming law enforcement or corrections officer

a. A person who knowingly takes or attempts to exercise unlawful control over a firearm or other weapon in the possession of a law enforcement or corrections officer when that officer is acting in the performance of his duties, and either is in uniform or exhibits evidence of his authority, is guilty of a crime of the second degree.

b. A person violating the provisions of subsection a. of this section shall be guilty of a crime of the first degree if:

(1) The person fires or discharges the firearm;

(2) The person uses or threatens to use the firearm or weapon against the officer or any other person; or

(3) The officer or another person suffers serious bodily injury.

 

Explanation of the Law

A person charged under the statute can be subjected to a First Degree or Second Degree Offense, depending on the extent of the encounter. It is a Second Degree Offense for a suspect to attempt to disarm or to actually disarm a police officer. Where the disarming progresses to the point that the gun or firearm discharges and/or is fired, the gun is pointed or used against the officer, or a person suffers serious bodily injury, the charge is a First Degree Offense. In either case, we are talking about a serious criminal indictment which carries a presumption of incarceration. It is therefore crucially important for an individual to hire a knowledgeable attorney to defend him given the exposure associated with a conviction.

In order to prove a Second Degree indictment or charge for disarming, the prosecutor must establish: (1) that the suspect knowingly took or attempted to take control of a firearm or weapon; (2) the weapon or firearm was possessed by a member of law enforcement; (3) the law enforcement officer was acting in the performance of his duties; and (4) the law enforcement officer was in uniform or exhibited evidence of his authority. An additional element must be established by the state where an individual is charged with a First Degree Offense - that the firearm went off, the firearm or weapon was used to threaten the police officer, or someone suffered serious bodily injury.  The first element is established when there is an interference with the officer's possession or control of the weapon. "Weapon" means anything capable of lethal use or of inflicting serious bodily injury. It must be emphasized, however, that the suspect must knowingly undertake unlawful disarmament for a violation to occur. Accordingly, there is no disarming under the statute if the suspect acts lawfully such as in the case of a superior law enforcement officer or where the defendant is acting in justified self-defense. Under the First Degree pedigree of the statute, "Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. There are clearly multiple elements and facts which a lawyer for the State and/or County Prosecutor's Office must prove and the criminal defense attorneys at our NY law firm will make sure that the prosecution meets its proofs or that the case is dismissed and/or downgraded.

 

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Domestic Violence

Domestic Violence Charges

New York has a strict approach to domestic violence. Police are required to arrest a suspect if the accuser—a wife, girlfriend, cohabitant, or any family or household member—shows any sign of injury, and may still arrest the accused even if there is no sign of injury. In response to an accusation of domestic violence or spousal abuse the municipal court will usually issue a restraining order against the accused.

 

Domestic Violence Charges

New York has a strict approach to domestic violence. Police are required to arrest a suspect if the accuser—a wife, girlfriend, cohabitant, or any family or household member—shows any sign of injury, and may still arrest the accused even if there is no sign of injury. In response to an accusation of domestic violence or spousal abuse the municipal court will usually issue a restraining order against the accused.

 

If accused of domestic abuse, contact a lawyer immediately

You may not realize how serious a charge of domestic violence is. Do not make the mistake of making any statement to the police or your accuser without an attorney present. You may make mistakes that will have long-lasting consequences for your family and your financial well-being.

 

Domestic assault and civil restraining orders

At any time of day or night a municipal or superior court can, on the flimsiest evidence of abuse, issue a Restraining Order which can have a devastating effect on your finances and rip your family apart. The order may require you to:

• Leave your home
• Refrain from contact or communication with your accuser and your children (even telephone or e-mail contact)
• Make mortgage or rent payments and pay support, even though you are not able to enter your home

A second violation of a Restraining Order automatically results in a jail sentence. Whether the charge of domestic violence resulted from an angry argument or you are in the midst of an ugly divorce and your spouse is trying to force you to accept a property or child custody agreement, you cannot ignore it. As your legal counsel, our lawyers will negotiate with your accuser. Domestic violence charges can be withdrawn, and at that point the court may terminate the restraining order. The prosecutor and court may agree to drop charges if you participate in anger management classes. We will work to get you reasonable visitation with your children, and protect your rights in all legal proceedings.

Domestic violence charges are often brought in connection with other crimes. The attorneys will work to have charges reduced through plea bargains or dismissed altogether, and are prepared to defend clients accused of domestic abuse or assault in connection with:

• Harassment
• Terroristic Threats
• Stalking
• Spousal abuse
• Marital rape
• Juvenile offenses
• Property crimes such as malicious mischief or trespassing
  
• Violations of protection orders or restraining orders
• Assault & Threat Ctimes

You may not realize how serious a charge of domestic violence is. Do not make the mistake of making any statement to the police or your accuser without an attorney present. You may make mistakes that will have long-lasting consequences for your family and your financial well-being.

 

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Harassment

Harassment Law

Reality is that relationships between people can take a turn and even become adversarial. The situation can escalate to the point that a criminal harassment complaint and/or arrest has occurred. The penalties imposed as a result of a harassment conviction can be significant and no one wants a criminal conviction on their record. The criminal defense lawyers at the Law Office Spar & Bernstein are experienced in defending harassment charges and our attorneys are prepared to assist you.

A person is guilty of a petty disorderly persons offense of harassment if (s)he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Harassment becomes an indictable offense of the Fourth Degree if the harassment occurs while the defendant is on parole or probation for an indictable criminal offense.

When an individual is arrested or charged with harassment based on annoying or alarming conduct, the question that is invariably encountered is whether or not the conduct was just insensitive or actually prohibited harassment. This line can sometimes be grey. The first principal to keep in mind is the fact that "intent" is a necessary element; that is, it must be shown that accused made the communication or caused the communication to be made for the purpose of harassing the victim.  It should also be kept in mind that New York's Courts have found that profanity alone will not constitute an intent to harass. Second, in order for a communication to be sufficiently annoying, it must "disturb, irritate, or bother" the victim to a consequential degree. Courts have found that it is not the purpose of the statute to criminalize communications made in inoffensive language at convenient hours or in the communicator's own name. Factors like gender, age and occupation of the person to whom the communication was directed, are relevant in determining whether a communication is severe enough to give rise to a valid harassment offense.

 

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Hindering Apprehension or Prosecution

Hindering apprehension or prosecution

a. A person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense or violation (s)he:

(1) Harbors or conceals the other;

(2) Provides or aids in providing a weapon, money, transportation, disguise or other means of avoiding discovery or apprehension or effecting escape;

(3) Suppresses, by way of concealment or destruction, any evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence, which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;

(4) Warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law;

(5) Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;

(6) Aids such person to protect or expeditiously profit from an advantage derived from such crime; or

(7) Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor

The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a crime of the second degree or greater, unless the actor is a spouse, parent or child of the person aided, in which case the offense is a crime of the fourth degree. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.

b. A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation (s)he:

(1) Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him; or

(2) Prevents or obstructs by means of force or intimidation anyone from performing an act which might aid in his discovery or apprehension or in the lodging of a charge against him; or

(3) Prevents or obstructs by means of force, intimidation or deception any witness or informant from providing testimony or information, regardless of its admissibility, which might aid in his discovery or apprehension or in the lodging of a charge against him; or

(4) Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor

The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense.

 

Breif Explanation of the Hindering Law

There are several types of conduct which constitute hindering: (1) harboring or concealing a person who is being sought by law enforcement; (2) aiding a suspect by providing a weapon, money, transportation, disguise or other means to avoid discovery or apprehension; (3) concealing, tampering or destroying evidence of a crime or information which would otherwise aid law enforcement; (4) warning the suspect of anticipated apprehension; (5) making threats, force, intimidation or deception to prevent or obstruct apprehension; (6) engaging in conduct to protect the profit or gain derived from the commission of a crime; or (7) giving false information to prevent, hinder or impede investigation or apprehension. Each of the aforesaid acts must be undertaken with the purpose to hinder in order for the related conduct to provide a basis for violation. The statute also requires that the suspect have knowledge that the person being protected was the target or actually charged with a crime, motor vehicle offense or insurance fraud.

The degree or grading of a hindering offense is predicated on the extent or seriousness of the underlying offense sought to be hindered and the relationship between the suspect and the person who is the target of the underlying offense. Where an individual is hindering to avoid a crime of the Second Degree or higher, the hindering is a third degree crime. An exception to this rule applies, however, where the target and the hinderer are spouses or enjoy a parental relationship. In this instance, the hindering is a Fourth Degree crime. Hindering is otherwise a disorderly persons offense.

The typical scenario for a hindering charge is where an individual is the subject of a traffic stop and identifies himself to police as someone else or provides other false information in hopes of avoiding an arrest; for example, the suspect has a outstanding warrant, has a suspended license or some other circumstance exists which would likely lead arrest if the accused identified himself properly.

 

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Obstructing the Administration of Justice

Obstructing administration of law or other governmental function

a. A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act. This section does not apply to failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

b. An offense under this section is a crime of the fourth degree if the actor obstructs the detection or investigation of a crime or the prosecution of a person for a crime, otherwise it is a disorderly persons offense.

 

Explanation of the Law

The offense of obstruction is intended to supplement other Criminal Code violations involving interference with law enforcement functions and is drafted broadly to encompass a wide range of behavior to impede police. An individual may be charged with either a disorderly persons offense or Fourth Degree Crime for obstructing the administration of law or justice. If the offense is filed as a disorderly persons charge, it is a misdemeanor offense customarily handled in municipal court and involves up to six (6) months in jail exposure. The Fourth Degree version of the offense is an indictable felony offense which is litigated at the Superior Court level and involves up to eighteen (18) months in jail. The following is an explanation of each pedigree of obstructing.

Someone who prohibits specific conduct to obstruct, impair or prevent the administration of law including: (1) flight; (2) intimidation; (3) force; (4) violence; (5) physical interference; (6) obstacle; and (7) other unlawful act. It should be noted that "words" are not included in the list of prohibited acts and that is because words alone are typically insufficient to prevent a police officer from doing his job and thereby constitute a violation under this section.  However, where words are combined with physical threats, the accused offender may be charged.

It should emphasized that there must be some affirmative act on the part of a defendant for a charge of obstruction to be proper. The suspect must engage in an affirmative act whose conscious object is to obstruct, impair or pervert the administration of law or other governmental function.

The offense of obstruction escalates to a Fourth Degree offense when the obstruction involves "detection or investigation of a crime or the prosecution of a person for a crime".

 

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Resisting Arrest 

Resisting Arrest Complaint, Charge or Summons

When individuals find themselves in the unfortunate circumstance of being arrested, the natural reaction is to question the arrest, pull away and/or to physically retreat or resist.  The reality is, however, that these actions can be construed as an independent criminal offense - Resisting Arrest.

 

Resisting Arrest Law

The Criminal Code contains various offenses intended to address intentional interference with police officers. The most frequently cited of these offenses is the charge of Resisting Arrest.

This law provides, in pertinent part, as follows:

(a)Uses or threatens to use physical force or violence against the law enforcement officer or another; or

(b)Uses any other means to create a substantial risk of causing physical injury to the public servant or another.

It is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance.

 

Explanation of the NJ Resisting Arrest Law

As a starting point, it should be noted that the charge of Resisting Arrest typically arises in New York as a disorderly persons offense. A disorderly persons offense is a misdemeanor charge which is customarily litigated in Municipal Court and involves punishment of up to six (6) months in jail. When an individual is resisting by fleeing a police officer, he may be charged with a Fourth Degree crime. A Fourth Degree offense is an indictable felony charge which is litigated in New York Superior Court, following Grand Jury Indictment, and carries up to eighteen (18) months in jail. A Third Degree Offense for Resisting Arrest may be filed where physical force or threats of physical force are made against a police officer. A Third Degree offense carries up five (5) years in jail and is also a felony. A knowledgeable defense lawyer, such as those at our law office, can prove invaluable in mitigate the penalty exposure and/or defeating a resisting arrest complaint or indictment.

In order to prove a resisting arrest offense, the prosecution is required to establish certain elements which change slightly as the grade of offense becomes more serious. In this regard, the state must establish the following to prove a disorderly persons offense of resisting arrest: (1) a police officer attempted to make an arrest; (2) the accused attempted to or actually prevented his or her arrest; (3) the police officer was acting under color of law and announced his intention to arrest; and (4) the accused's conduct to prevent his arrest was intentional.  When the resisting arrest is escalated to a Fourth Degree Resisting Arrest charge, the additional element of flight must be established for an indictment to stand. A resisting arrest charge can be enhanced further to a Third Degree offense and, in this instance, the state must prove either that the accused used or threatened to use physical force or violence against the police or, alternatively, created a substantial risk of physical injury to the police. Our criminal defense attorneys are skilled in targeting the weaknesses in a resisting arrest charge and will make sure that the prosecution proves each and every element of the offense.

The fact that an arrest was unlawful or illegal does not necessarily negate a charge of resisting arrest. The rationale for this rule is the fact that the law would rather discourage a potential escalation in violence by establishing a public policy that the proper forum for fighting an unlawful arrest is through the courts rather than self help. It must be kept in mind, nonetheless, that a resisting arrest charge cannot stand unless the police officer had color of authority to make the arrest and announced his intention to arrest. 

 

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Restraining Orders

Defending Restraining Orders

An encounter with the police as a result of a temporary restraining order or alleged violation of a final restraining order can be frightening. In either scenario, it is typical for the accused to be arrested and for bail to imposed.

Standard & Procedure for Obtaining a Restraining Order in New York

(a) Application for Temporary Restraining Order.
An applicant for a temporary restraining order shall appear before a judge personally to testify upon the record or by sworn complaint submitted. If it appears that the applicant is in danger of domestic violence, the judge shall, upon consideration of the applicant's domestic violence affidavit, complaint or testimony, order emergency relief including ex parte relief, in the nature of a temporary restraining order.

(b) Issuance of Temporary Restraining Order by Electronic Communication.
A judge may issue a temporary restraining order upon sworn oral testimony of an applicant who is not physically present. Such sworn oral testimony may be communicated to the judge by telephone, radio or other means of electronic communication. The judge or law enforcement officer assisting the applicant shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate long hand notes summarizing what is said shall be made by the judge.

(c) Temporary Restraining Order.
In court proceedings instituted under the Prevention of Domestic Violence Act of 1990, the judge shall issue a temporary restraining order when the applicant appears to be in danger of domestic violence. The order may be issued ex parte when necessary to protect the life, health, or well-being of a victim on whose behalf the relief is sought.

(d) Final Restraining Order.
A final order restraining a defendant shall be issued only on a specific finding of domestic violence or on a stipulation by a defendant to the commission of an act or acts of domestic violence as defined by the statute.

(e) Procedure Upon Arrest Without a Warrant.
Whenever a law enforcement officer has effected an arrest without a warrant on a criminal complaint brought for a violation otherwise defined as an offense under the Prevention of Domestic Violence, bail may be set and a complaint-warrant may be issued.

Where a reasonable basis exists to believe that one or more of the previously mentioned offenses has occurred, a temporary restraining order shall be granted. The restraining order shall bar any contact between the parties and failure to obey the restraining order shall result in a criminal violation. It should also be noted that New York requires that all temporary restraining orders provide for seizure of weapons in the possession of defendant. The police officer serving the restraining order is also required to "seize any firearm purchaser identification card or permit to purchase a handgun issued to the person accused of the act of domestic violence".

Within ten (10) days of issuance of the temporary restraining order, a hearing is to be conducted by a Superior Court Judge in the Family Division to determine whether or not the temporary restraining order shall become a final restraining order. This is the stage and forum for our criminal defense attorneys to present your side of the case. It is imperative that individuals take advantage of this opportunity because issuance of a final restraining order has significant implications including, but not limited to, the fact that they will be arrested for a criminal offense in the event that the plaintiff alleges a violation of the restraining order in the future.

 

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Simple Assault

Simple Assault Law

a. Simple Assault. A person is guilty of assault if (s)he:

(1) Attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another; or

(2) negligently causes bodily injury to another with a deadly weapon; or

(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.

Simple Assault is a disorderly persons offense unless committed in a flight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense. 

 

Explanation of Simple Assault

a. Attempts: The offense of simple assault is somewhat unique insofar as it can arise under multiple scenarios in terms of purpose or intent; that is, the charge is not limited to situations where an individual had the purpose and intent to assault someone. In this regard, a person may be found guilty under the simple assault statute if he acted either purposefully, knowingly, recklessly or negligently. The law also imposes criminal liability for "attempted" conduct which is somewhat unusual under our Criminal Code. The offense of attempted simple assault is provided for and may arise when an individual attempts to cause bodily injury to another or where an individual puts an individual in fear of imminent serious bodily injury by engaging in menacing conduct. 

b. "Bodily injury" and "serious bodily injury": The simple assault law make repeated reference to the term "bodily injury". Bodily injury is defined as physical pain, illness, or any impairment of physical condition. In other words, bodily injury contemplates some physical contact with another individual's body, whether it be actual or attempted. The term "serious bodily injury" takes the situation further in terms of the describing the extent of physical contact. Serious bodily injury refers to an injury which involves a substantial risk of death or causes serious, permanent disfigurement or protracted loss or impairment of a body function. 

c. Recklessly Causing a Simple Assault: Recklessly causing simple assault refers to the instance where an accused consciously disregards a known, substantial and unjustifiable risk that bodily injury shall be caused. The conduct must involve a gross deviation from what would be reasonable under the particular circumstances. What is and is not reasonable under a given set of circumstances can become subjective and a knowledgeable defense lawyer, such as those at our office, can be invaluable when this issue arises.

d. Negligently Causing a Simple Assault: A simple assault can only arise negligently where a deadly weapon is involved. A deadly weapon is defined as "any firearm or weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead a victim reasonably to believe it to be capable of producing death or serious bodily injury". A negligent assault is triggered where an individual inflicts bodily injury with a deadly weapon under circumstances involving a knowing, substantial and unjustifiable risk of injury. The conduct must, again, violate the reasonableness standard previously discussed. A lawyer at your side is an imperative where someone is charged with this offense as it almost always is accompanied by a charge of possession of a weapon for unlawful purpose, which is a very serious offense.

 

Grading for Simple Assault

A simple assault conviction is typically a disorderly persons offense. Where the simple assault arises in the context of a consensual fight or scuffle, then it is a petty disorderly persons offense. If the intended victim of a simple assault is, however, a police officer or some other public official, then the offense becomes an indictable felony charge. A simple assault committed on a public official, such as police officer, is a Third Degree offense if it results in bodily injury but otherwise it is a Fourth Degree Crime. The criminal lawyers at our firm are often successful in obtaining a downgrade of a simple assault charge and/or dismissal altogether. 

 

Merger & Lesser Included Offenses of Simple Assault

Harassment is a lesser-included offense to simple assault and may therefore a simple assault charge may be downgraded to harassment where the proofs support such an amendment. Similarly, an individual cannot be convicted of both harassment and simple assault insofar as harassment is a lesser included offense of simple assault. Under the same logic, an aggravated assault charge may be downgraded to simple assault and an individual cannot be convicted of both offenses. 

 

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Stalking Offenses

Stalking Law
 

(1) "Course of conduct" means repeatedly maintaining a visual or physical proximity to a person or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct or a combination thereof directed at or toward a person.

(2) "Repeatedly" means on two or more occasions.

(3) "Immediate family" means a spouse, parent, child, sibling or any other person who regularly resides in the household or who within the prior six months regularly resided in the household.

b. A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or a member of his immediate family or to fear the death of himself or a member of his immediate family.

c. A person is guilty of a crime of the third degree if he commits the crime of stalking in violation of an existing court order prohibiting the behavior.

d. A person who commits a second or subsequent offense of stalking against the same victim is guilty of a crime of the third degree.

e. A person is guilty of a crime of the third degree if he commits the crime of stalking while serving a term of imprisonment or while on parole or probation as the result of a conviction for any indictable offense under the laws of this State, any other state or the United States.

f. This act shall not apply to conduct which occurs during organized group picketing.

 

Explanation of the Law

In order for an individual to be guilty of stalking, his conduct must be such that a reasonable person in the "victims" shoes would be imminently threatened. The prior relationship and actions of the accused is relevant in this regard, such as, for example, whether any prior threats were made and acted upon. An exception is carved out under the law, however, for group picketing. The lawyers at our firm are experienced in handling criminal cases of this nature and know how to best present the facts so that a client is provided maximum protection.

Stalking is generally a Fourth Degree Offense but can be enhanced to a Third Degree Crime if three circumstances exist: (1) there was an existing Court Order prohibiting the conduct; (2) the incident is the second or subsequent offense against the suspect with reference to the "victim"; or (3) stalking occurred while the suspect was in jail or on probation or parole for an indictable offense. A Fourth Degree stalking indictment involves jail exposure of up to eighteen (18) months whereas a Third Degree stalking indictment involves up to five (5) years in jail. Irrespective of the degree associated with a stalking arrest, jail is clearly a real possibility and it is prudent for an defense attorney to be enlisted.

 

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Terroristic Threats

 

The offense of Terroristic Threats is becoming more and more common in New York. Insofar as these complaints are based on he said/she said type allegations, Terroristic Threats charges have a great incidence of trial in the experience of our law firm.

a. A person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience. A violation of this subsection is a crime of the second degree if it occurs during a declared period of national, State or county emergency. The actor shall be strictly liable upon proof that the crime occurred, in fact, during a declared period of national, State or county emergency. It shall not be a defense that the actor did not know that there was a declared period of emergency at the time the crime occurred.

b. A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

 

Explanation of the Law

It should be pointed out initially that the topic of "terroristic threats" is often raised in the context of Domestic Violence, however, the circumstances giving rise to this charge need not have anything to do with a domestic relationship. All that is required is a threat of violence irrespective of the relationship from which the threat arises. The threats may be in written form or verbal threats, and they must cause serious alarm. The threats may be to physically injure someone, to damage or destroy their property, or to inflict the same on someone with whom they have an interest. It is not necessary for the threat to be tied to some object but only that the threat was made and that it reasonably caused fear. Indeed, so long as the circumstances are such that a reasonable person would believe the threat, that it was imminent, and that it could be carrier out, then there is a terroristic threat. It should be reiterated, however, that the statute contemplates "serious" threats that are not simply expressions of transitory anger. See Commission Commentary at paragraph 3. A threat to commit a disorderly persons offense will not, therefore, support a charge or indictment for terroristic threat. . In evaluating whether a threat rises to the level of constituting a "terroristic threat", courts should consider the particular facts of each case and whether a reasonable person in that situation would believe the threat.  Given this standard, selection of the right trial lawyer who knows how to properly argue the facts and law is important.

With respect to a threat to kill an individual, the law requires that it be shown that the accused possessed a specific intent to place the victim in imminent fear of death. In other words, the threat must be made under circumstances manifesting a serious promise of death. 

There are three material elements of a terroristic threats charges: (1) the accused made a threat; (2) the threat was to commit an offense of violence; and (3) the threat was made with the purpose of terrorizing or acted with reckless disregard of the risk that third parties would react in this manner. The criminal lawyers at our law firm make sure that the prosecution proves each and every element of the charge.

 

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Violation of a Restraining Order

Restraining Order Violations

While a temporary restraining order hearing is civil in nature, violation of a temporary or final restraining order has criminal consequences. In this regard, a violation of a Restraining Order is a criminal offense such that a defendant shall be arrested when probable cause or a reasonable basis exists to believe that a violation has occurred.

An individual is deemed to be in contempt and subject to a criminal contempt chargewhere he or she violates a temporary or final Restraining Order. There is a procedure to be followed by police when probable cause exists to believe that a restraining order violation has occurred and the defendant is to be arrested

Except as provided below, a violation by the defendant of an order issued shall constitute an offense and each order shall so state. All contempt proceedings conducted involving domestic violence orders, other than those constituting indictable offenses, shall be heard by the Family Part of the Chancery Division of the Superior Court. All contempt proceedings brought shall be subject to any rules or guidelines established by the Supreme Court to guarantee the prompt disposition of criminal matters. Additionally, and notwithstanding the term of imprisonment provided in N.J.S. 2C:43-8, any person convicted of a second or subsequent nonindictable domestic violence contempt offense shall serve a minimum term of not less than 30 days.

2C:29-9. Contempt.
b. Except as provided below, a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c. 261 (C.2C:25-17 et al.) or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense.  

Notice & Knowledge of the Restraining Order

A court is required to confirm that the defendant possessed notice of a temporary or final restraining order before determining whether a violation of the order has occurred. Accordingly, where an accused has not been served with a copy of the restraining order or otherwise notified of its existence, he should not be held accountable for a violation. The defense of lack of notice would not apply, however, where a defendant's lack of knowledge is unreasonably based such as where he or she reasonably knew that the restraining order was in existence but simply claims ignorance to escape accountability.

 

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