Assault and Battery

Stewart McMillan is an experienced former New York State Prosecutor with over twenty (20) years of experience who has successfully defended clients charged with assault and assault and battery in the New York Courts like Manhattan, Queens, Bronx and the Westchester County Courts like White Plains, Rye, Elmsford, Chappaqua, Yonkers, Sleepy Hollow, New Rochelle, Mamaroneck, Mount Vernon, Port Chester and in Connecticut courts like Stamford, and Greenwich.

The seriousness of assault charges under New York State Law depends primarily on the seriousness of the injury to the other person (or lack thereof).

Assault in the third degree is the least serious of the assault crimes. Assault in the third degree is a Class A misdemeanor which requires a showing of physical injury.

Physical injury can be proven in New York State by a minor injury which causes redness, swelling or substantial pain.

The physical injury may be caused intentionally (on purpose) or recklessly (with disregard of the expected consequences to the other person). If you recklessly cause physical injury to another person, you will be charged under NYS PL 120.00 (2). The recklessness required may be proven through a disregard for the well health and well being of the person injured.

Assault in the Second Degree (under NYS PL 120.05) will be charged if, without limitation, the accused:

1. Causes serious physical injury; or
2. Causes injury with a deadly weapon; or
3. Injures a Police Officer or transportation worker performing his job; or
4. Injures someone while giving them a drug without their consent or permission; or
5. Causes injury while fleeing Police; or
6. Causes injury to a child or senior citizen; or
7. Injures someone on school grounds.

Serious physical injury is defined as injury, in substance, which causes permanent loss of life of bodily function or an organ or the substantial risk of death.

Assault in the First Degree will be charged for:

1. Serious physical injury caused with a deadly weapon; or
2. Intentionally disfiguring another person; or
3. Engaging in conduct creating a grave risk of death which results in serious physical injury; or
4. Causing physical injury in the course of a felony.

The most common defense to an assault charge is showing that the level of injury does not rise to the crime charged.

New York State Police notoriously overcharge defendants with higher classifications of assault because of the common fear that the victim’s injuries may worsen. For instance, a person will often be charged with Assault in the Second Degree where no serious physical injury occured.

Self defense is the second most common defense for assault related crimes. If you are attacked or threatened with bodily harm by another person, you have every right to defend yourself. However, it is important to note that New York State does not follow the stand your ground law. So if you can safely retreat, you must.

If the defense of self defense is successfully raised, the prosecution must then prove, beyond a reasonable doubt, that the defendant has not acted in self defense.

Assault cases are often based almost exclusively on eyewitness testimony (i.e., witnesses who saw the fight occur). Eyewitness testimony is inherently unreliable and is easy to refute. Mr. McMillan is experienced in the detection of inherently unreliable witness testimony and has often discredited it in the past.

Mr. McMillan is aware that it takes two to tango and has successfully used that defense (and others) in defending clients charged with assault in Courts such as White Plains, Yonkers, Greenburgh, Rye, Mamaroneck, Port Chester, Elmsford, Stamford, Bronx, Queens and Manhattan.

If you or a loved one has been charged with Assault or Assault and Battery, contact our assault lawyers at (914) 358-4326 or at (917) 538-5016.