Articles Posted in Assault

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Under these criteria, and under 510.30 of the CPL, the court can come to only one logical conclusion, namely that the pre-arraignment procedure now existing in Bronx County violates a defendant’s right to the granting of reasonable bail; does not conform with the requirements of 510.30 of the CPL; and contradicts the mandate of the Court of Appeals and is therefore an unconstitutional deprivation. If the Court is uninformed in the bail fixing process, reasonable bail cannot be set. The Legislature, in passing section 510.30, set forth standards so that the Court can guide itself in being as objective as possible. The pre-arraignment procedure frustrates these guidelines by cutting off from the Court its main and most significant source of information upon which it must rely if it is to conform to the intent of the Legislature.

The People, without conceding that the defendant’s arrest rights were violated, state in their brief (page 13, referring to the advantages of pre-arraignment): ‘This public benefit so far outweighs any hypothetical minor inconvenience or prejudice to a defendant, that even were defendant prejudiced in any way continuance of the present arraignment procedure would still be justified. When the public need is balanced against the inconvenience to a private citizen, and the public need is deemed paramount, it takes precedence, and the perquisites of a private citizen must yield.

The fact is that society must exercise restraint consistent with the Constitution in prosecuting individuals for crime and depriving them of their liberty, because if society permits the erosion of basic rights of those who are charged with criminal activity, in the name of public benefit, the groundwork is then laid for a system of government which would open the door to a similar erosion of the rights of those who are totally innocent.

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The remaining issues refer to: 1. The right of the accused under the Sixth Amendment of the United States Constitution to confront and cross-examine his accusers; and 2. Whether under the pre-arraignment procedure the arraigning magistrate is given access to sufficient information to exercise his discretion guaranteeing the defendant’s rights to reasonable bail, as set forth under the Eighth Amendment of the Constitution of the United States, Article I, Section 5 of the New York State Constitution, and Section 510.30 of the CPL.

The first issue is relatively easy to dispose of. The right of confrontation is generally defined to mean the right of the accused to hear witnesses testify against him and to cross-examine them. The purpose of the confrontation clause of the Sixth Amendment is to advance practical concern for the accuracy of the truth determining process in criminal trial by assuring that the trier of the facts has a satisfactory basis for evaluating the truth of prior statements. The right of confrontation is basically a trial right, and due process does not require that an accused be afforded the right to confront and examine at a preliminary hearing all of the witnesses against him.

This court has found no case authority sustaining the view that the right of confrontation accrues at so early a point as arraignment in a criminal proceeding and accordingly finds that the pre-arraignment procedure does not violate the defendant’s Sixth Amendment rights. The nature of the offense, the penalty which may be imposed, the probability of the willing appearance of the defendant or his flight to avoid punishment, the pecuniary and social condition of defendant and his general reputation and character, and the apparent nature and strength of the proof as bearing on the probability of his conviction.

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A Bronx Estate Litigation Lawyer said that, the defendant herein attacks the ‘pre-arraignment’ procedure now in effect in Bronx County by moving to dismiss the charges against him on the ground that he was subjected to an improper, unauthorized, and unconstitutional deprivation of his rights in being arraigned pursuant to such procedure. On August 2, 1973, at 6:30 P.M., the defendant was arrested and charged with violation of section 120.05 (assault in the second degree) and in a companion case arising from the same set of circumstances, 205.30 (resisting arrest) of the Penal Law. He was taken to Central Booking in the Bronx by the arrest officer and the booking procedure was completed by 8:15 P.M. While the defendant was held in the detention cell, the arresting officer and the complaining witness proceeded to the pre-arraignment room located on the second floor of the Bronx Criminal Court building at 161st Street and Third Avenue, in the County of Bronx. The accusatory instrument was drawn at 8:35 P.M., a written complaint was prepared and sworn to, and the Assistant District Attorney presumably made up his ‘fact sheet’. At this time, the arresting officer and his complainant were excused, and the defendant’s fingerprints were wired to Albany. The fingerprint record commonly known as the NYSIIS sheet was returned at 11:45 P.M., just as Night Court in the Bronx was closing. The case was set for arraignment the following morning before me. Neither the complainant nor the arresting officer was present. Arraignment without the presence of these parties was objected to by defense counsel and he made the motion herein and the matter was adjourned to allow the parties sufficient time to file memoranda on the legality of the procedure. In the interim, the defendant’s counsel moved to parole the defendant and he was so paroled, pending the resolution of this issue.

A Bronx Estate Lawyer said that, the pre-arraignment procedure so described has been in existence in Bronx County since October 1, 1969. It was promulgated by the Police Department with the approval of the District Attorney and the Appellate Division of the First Department with a view towards eliminating the necessity of the police officer’s and the complainant’s presence at the arraignment, thereby saving the police man-hours and likely inconvenience to the complainant. It is interesting to note that Bronx County, alone, continues this practice, although its implementation was attempted in Kings County and New York County. Article 78 proceedings were commenced in both counties, but the issues of constitutionality were never decided, because as a result of the institution of these actions, the procedure was discontinued in each instance and therefore, the said actions were discontinued.

Without conceding that the procedure so described accomplishes its aims, the defendant sets forth several contentions tending to support his claim that the implementation of the procedure is unlawful and violates his basic constitutional rights. Two of these contentions bear serious consideration. The others refer to criminal court and police procedures; are therefore administrative; and should not be the province of this court.

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Separate from any criminal prosecution for assault, a victim may pursue civil damages for injuries caused by it. After a determination by a judge or jury that an assault was committed, the next step is to determine what compensation is appropriate.

Three types of damages may be awarded. Compensatory damages, such as medical expenses, are meant to compensate for the injury sustained. Nominal damages are a small sum. Nominal damages act as an acknowledgment that a person has suffered a technical invasion of rights. They are awarded in cases where no actual injury has resulted, or where an injury occurred, but the amount has not been established. Finally, punitive damages may sometimes be awarded. Punitive damages may be awarded in particularly egregious circumstances, as a way to further punish the wrongdoer. Punitive damages go above and beyond compensatory damages.

A New York Assault Lawyer said that, another issue that I have witnessed both as a prosecutor and criminal defense attorney is where a person is charged with Assault in the Second Degree, a felony punishable by up to seven years in state prison, but a critical element is not made out. Pursuant to P.L 120.05(1), an individual is guilty of this charge when with the intent to cause serious physical injury to another person, he causes such injury to such person or to a third person. Here, your criminal defense attorney needs to challenge the validity of the “serious physical injury.” Unlike mere “physical injury” such as a black eye or bloody cut lip, “serious physical injury” requires the creation of substantial risk of death or causes, among other things, protracted disfigurement or impairment of health. So, in the event that it was your intent to cause “serious physical injury,” but the injury suffered did not rise to this level, then you are not guilty of Assault in the Second Degree. Moreover, if you were reckless in your actions and caused “serious physical injury,” then you must have used a weapon or dangerous instrument to cause this injury. The recklessness by itself will not be sufficient to satisfy the elements of Assault in the Second Degree.

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Assault means something very specific when it comes to torts and personal injury law. In tort law, an assault refers to an attempt or threat of violence – not actual violence itself. This may surprise people. But it’s one of the first things most American lawyers learned in law school.

A New York Criminal Lawyer said that, the best criminal defense of an Assault case depends on many factors. Regardless of where you are in New York, your criminal defense attorney should always pursue numerous legal angles. Is the Assault complaint/information against you legally sufficient? Has the complaint/information established a physical injury or substantial pain? Are there any witnesses or are there pictures or video of the incident? How has the evidence been preserved? Not an exhaustive list, the above questions are tremendously important ones that your criminal defense attorney needs to know when defending your Assault case.

It is also very important to understand as the accused the nuances between certain types or levels of Assault. For example, if you are charged with intentional Assault in the Third Degree pursuant to P.L. 120.00(1), but you were acting recklessly, then your actions may or may not satisfy the intentional element of the offense. Instead, a charge of P.L. 120.00(2) would be appropriate. In the latter form of Assault, the intentional requirement is replaced with a reckless element. Although the levels of the crime are the same, they are both misdemeanors, if your mental state was reckless as opposed to intentional, then P.L. 120.00(1) would not be the appropriate charge.

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In the instant case, the facts are even more compelling, since the charge contained in the second warrant was simply a technical charge arising out of the same incident underlying the charges contained in the first warrant. Petitioner committed a new crime, outside of Westchester County, at an hour that was past his curfew. All but the “out of county without permission” charge appeared in the first warrant. This charge should have been included as well.

Respondents cite two cases in support of the criminal proposition that not all charges need be included in a single warrant, but these cases are readily distinguishable. In one case, a parole warrant was issued on July 25, 1995 and lodged on August 9, 1995. On August 3, 1995 (after the first warrant was issued, but before it was lodged) the parolee was rearrested. Following dismissal of the initial charges, a second parole warrant was lodged including charges relating to the August 3 arrest. Noting that the new criminal charges could not have been included in the original warrant, the court held that the Division was entitled to a reasonable time to investigate the new charges and was under no obligation to add them to the existing warrant.

First, in neither of these cases did the second charge arise out of the same incident as the first charge. Second, and more importantly, in each of these cases the new charge was not known to the Division at the time the first charges were filed. These cases stand only for the proposition that the Division is entitled to time to investigate new charges, and is not required to add them to an existing warrant if it is not possible to do so or if additional time is needed to investigate.

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Petitioner, by his attorney, has filed a writ of habeas corpus seeking vacatur of a parole warrant and release to parole supervision. Petitioner alleges that his right to due process and fundamental fairness was denied when the Division of Parole, having failed to establish probable cause at a preliminary hearing, filed a second parole warrant containing a “new” charge arising out of the same underlying incident as the initial charges that were not sustained.

Petitioner was convicted of assault in the second degree and criminal possession of a weapon in the third degree. He was sentenced to concurrent terms of 4 years and 1 1/3 to 4 years respectively. Petitioner was released to parole supervision on April 25, 2003. Since petitioner resides in Mount Vernon, he was being supervised in Westchester County, and one of the conditions of his parole was that he not leave the county without permission from his parole officer.

A Bronx County Criminal lawyer said that petitioner was arrested and charged with robbery and related offenses in Bronx County on April 21, 2006. He was declared delinquent as of that date. Parole warrant No. 411663 was executed on April 26, 2006. The violation of release report contained six charges, all relating to petitioner’s arrest for robbery and related charges on April 21, 2006 in Bronx County. The first five specifications related to the substantive allegations of petitioner’s new case. The sixth charge alleged that petitioner had violated his curfew by being out of his residence after 7:00 P.M.

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“The well-recognized rule is that such adjudication rests within the sound discretion of the court and depends upon all of the facts and circumstances in the case. It is not an abuse of discretion to reject the recommendation of the District Attorney.” Defendant disagrees, and points to the language in subdivision (1) (b) as applicable to her because, in addition to the fact that she was under the age of 19 at the time of the incident, the case was never presented to a grand jury, having originated in and remained pending in New York City Criminal Court at the time the sole felony charge was dismissed. Thereafter, there was a “merger” of the Bronx branch of the Criminal Court of the City of New York into Supreme Court, Bronx County, Criminal Term, so as to create an all new Supreme Court, Bronx County, Criminal Division for disposition of all felony and misdemeanor charges. However, counsel argues, but for the merger of Criminal Court into the new Criminal Division, defendant’s case would have been disposed of in the local court, thereby triggering the mandatory provision in subdivision (1) (b).

The authority for the creation of the Criminal Division is an administrative order promulgated by Chief Administrative Judge, establishing the Criminal Division in Bronx Supreme Court, effective September 21, 2004. As counsel further argues, pursuant to those new rules, under the last section entitled Procedure upon transfer of a criminal case hereunder: “Each case transferred from the Criminal Court of the City of New York to the Supreme Court and referred for disposition to the criminal division thereof pursuant to section 142.2 of this Part shall be subject to the same substantive and procedural law as would have applied to it had it not been transferred. An appeal taken from the trial court in such a case shall be taken to the same intermediate appellate court to which such appeal would have been taken had the case not been transferred hereunder.”

Clearly, the creation of the Criminal Division has spawned issues unique to the Bronx. Indeed, there have already been a slew of decisions addressing some of the special problems that have arisen.

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Defendant was originally charged in criminal court with assault in the second degree, Penal Law § 120.05 (3), assault in the third degree, Penal Law § 120.00 (1), resisting arrest, Penal Law § 205.30, public lewdness, Penal Law § 245.00 (a), and disorderly conduct, Penal Law § 240.20 (1). Following a bench trial on August 10, 2005, I found the defendant guilty of attempted assault in the third degree, Penal Law §§ 110.00 and 120.00, a misdemeanor, and disorderly conduct, Penal Law § 240.20, a violation.

Defendant now moves, pursuant to CPL 440.10 and 440.20, to have this court vacate her conviction and resentence her, after first adjudicating her a mandatory youthful offender. Counsel contends that CPL 720.20 (1) (b) requires that she be so adjudicated, and if I were to refuse to do so that would abrogate her equal protection rights, and constitute punishment in violation of the Ex Post Facto Clause of the United States Constitution.

A Bronx County Criminal lawyer said that the People oppose the motion to the extent of defendant’s constitutional arguments, but “do not oppose the defendant’s application for this Court to vacate Defendant’s sentence and re-sentence defendant as a mandatory youthful offender.” And in the People’s memorandum of law they argue that the defendant should be entitled to mandatory youthful offender treatment.

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Applying those factors to the instant case, we turn first to the private interest affected. A Temporary Order of Protection excluding defendant from the home is not an adjudication of title, and is not to be mistaken for a legal order of eviction pursuant to RPAPL, Article 7. Nevertheless, the interest affected here is the defendant’s use and enjoyment of his property interest in the home he owns jointly with his wife. Beyond its value as property, a person’s special interest in his/her home as an enclave of personal security and privacy has repeatedly been recognized. Being suddenly deprived of one’s home, even temporarily, is a traumatic experience.

Clearly, the property interest of the defendant affected by exclusion from the home pursuant to a Temporary Order of Protection is a substantial one. Before defendant may be [145 Misc.2d 127] deprived of such an interest permanently, or even temporarily, he is entitled to a hearing, unless extraordinary circumstances and an overriding state interest necessitate prompt action either without a hearing or without the appropriate evidentiary hearing until after the event. Were no timely hearing available to defendant with respect to the TOP excluding him from his home, CPL 530.12(1)(a) would indeed be unconstitutional.

The State’s interest in the issuance of Temporary Orders of Protection pursuant to CPL 530.12(1), CPL 530.12(1)(a), is also a significant one. Domestic Violence has come to be recognized as a social scourge of the first order. Not only does the State have a strong interest in combatting domestic violence through criminal prosecutions, but that interest is severely undermined if victims of domestic violence are too frightened by further threats and acts of violence to participate in the criminal prosecution of their cases. Further, the State’s interest in combatting domestic violence through criminal prosecutions is closely linked to the interest of courts, as state instrumentalities, in protecting the integrity of judicial proceedings. The great potential for violence and intimidation which is present when both the victim and the perpetrator of domestic violence continue to live under the same roof is self-evident. Where danger of injury or intimidation to a complainant can be shown to exist, the device of a Temporary Order of Protection excluding the accused from the home, and otherwise restraining victim harassment and intimidation, is indispensable to the maintenance of a criminal prosecution. Moreover, the state has an interest in the issuance of the TOP at the earliest possible time, since the danger of intimidation and injury to the complainant, if it exists, is an immediate one. In a very real sense, the issuance of such a Temporary Order of Protection as a condition of bail or recognizance at the time a defendant is arraigned is an emergency decision.

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