Intentional Assault

One of the crimes which people are most commonly charged with is assault. In New York State, an individual must both intend to cause physical injury and actually cause physical injury for assault to be charged. Assault in the third degree is a misdemeanor, which means it is punishable by up to 364 days in jail. Assault in the third degree is frequently charged when two people have a physical fight. If one of the parties is hurt, and the other party is not, the individual who got the better of the fight will wind up being arrested. It really is true that when two people fight, the loser goes to the hospital and the winner goes to jail.

Assault in the third degree is a class A misdemeanor. As such, it is a crime for which a conviction will result in a criminal record. Assault in the third degree charges are often plea bargained to either disorderly conduct or an adjournment in contemplation of dismissal. When assault in the third degree charges are resolved with a plea, there is usually an order of protection  put in place requiring the perpetrator to have no contact with the victim. For strangers, an order of protection usually presents no problem, but for people who live or work near each other, an order of protection can cause difficulties. In order to facilitate dispositions of cases, frequently courts will allow for incidental contact in an order of protection, so that unintentional contact around an apartment building or work place won't be considered a violation of the order. This is important, because violations of an order of protection will violate a conditional discharge and can also be charged as a separate crime.

Charges of assault in the third degree can be successfully defended in court. In the ordinary case of a fist fight, the legal defense of "justification," which is commonly known as self defense, can be argued. There is an absolute right to defend oneself, but such self defense must be proportionate. Stabbing or shooting someone who has threatened to punch you is not legal, but punching back is. While it is well known that certain states have "stand your ground" laws, New York does not have such a law. There is a "duty to retreat" if one can do so safely, but this duty does not apply in one's own home. Furthermore, the defense of justification is not available if one is the "initial aggressor."  Whether or not physical force is justified in any given circumstance is fact sensitive, and beyond the scope of this posting. It is clear, though, that justification can often be successfully raised in defense of assault charges.

Assault in the third degree is the lowest of three grades of intentional assault. Where there is intent to cause what the law deems to be "serious physical injury" and such injury is caused, a person can be charged with assault in the second degree, a class D felony. Where such serious physical injury is caused by a deadly weapon or dangerous instrument, a person can be charged with assault in the first degree, a class B felony. Felony assault charges are quite serious, and convictions for these crimes may result in lengthy upstate prison sentences. 

For all three grades of intentional assault, a defendant is entitled to a trial by jury. Where an individual is charged with Assault in the third degree, the most common and least serious intentional assault charge, district attorney's offices in New York City will frequently reduce the charges to attempted assault in the third degree prior to trial. The reason for this is that since attempted assault in the third degree is only a B misdemeanor with a maximum jail exposure of 90 days, a defendant is not entitled to a jury trial in New York City. Consequently, assault in the third degree charges which are not pled out are frequently tried to judges with the top charge being attempted assault in the third degree.

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