The Meaning of
Assault in New York
Assault charges in
New York are brought when someone is accused essentially of
intentionally causing physical injury to someone else.
This is a fancy way of saying that one person beat up another
person.
In New York, Assault
cases are generally graded according to the seriousness of the
injury to the victim. Generally, the more seriously the
victim is injured, the more serious the crime.
Assault in the Third
Degree is the least serious of the assault family of charges.
Assault in the Third Degree is a misdemeanor. Assault in
the Second Degree and Assault in the First Degree are felonies
potentially carrying substantial state prison terms.
Assault in the First Degree is the same level of offense as
Attempted Murder.
Police Officers are
a special sort of victim in New York law. If you are
charged with assaulting a police officer, it is at least Assault
in the Second Degree, a class D felony offense. As long as
the police officer suffers "physical injury" of any kind as that
term is defined in New York, it is a serious felony offense.
Defending Assault
Accusations
Assault charges in New York City are ripe for false
or mistaken accusations for a variety of reasons/
One of the
primary sources for false accusations of assault is what I call the
Golden Rule of Assault Investigation for the NYPD (New York City
Police Department).
The NYPD Golden Rule of Assault Investigation
is: In any fight between two people, whoever is injured
the most is the victim and whoever is injured the least is the
criminal.
The Golden Rule allows the investigators to
"solve" a case quickly. The police can immediately assess
who the most injured party is in a fight. It's quick.
It's simple. And sometimes it's even right.
The problem with the Golden Rule of Assault
Investigation, of course, is that it doesn't take into account
one of the most basic principles of humanity - self defense.
Sometimes, the person who starts a fight gets the worst of the
fight he starts, and he deserves everything that happens to him.
What's worse is that when the police show up,
the person who is injured more severely clearly has major
motivation to tell the police that he was not the aggressor in
the fight. First, he is not likely to want to tell the
police that he committed a crime by assaulting you.
Second, after getting the worst of the fight he is likely to be
even angrier than when he started the fight in the first place.
There is also
another version of the Golden Rule of
Assault Investigation, which says: After two people have been in
a fight, whoever calls the police first is the victim, and
whoever calls the police second (or not at all) is the criminal.
I have seen this corollary at work in amazing
ways. I had an assault case in which my client was
attacked by a family member in broad daylight in public in front
of at least one witness. My client fought back in a brief
struggle, then escaped and ran directly to the nearest police
precinct, which was not too far away. The police were
initially sympathetic to her and began taking her complaint
against her family member.
Halfway through the paperwork, the officer
taking the information was interrupted. It turns out that
other members of the precinct had been called to the scene by a
911 call made after the struggle but before my client had made
it to the precinct. We are talking about a matter of
minutes here. Applying the corollary above, however, the
police ripped up the paperwork they had begun for my client, and
arrested her on the spot. They charged her with the
assault and we had to take the case to trial in order for my
client to be vindicated. We had an independent eyewitness
(who tried to speak to the police but they would not take his
statement - it interfered with the Golden Rule and its
corollary). In the end my client was acquitted, but not
without the case dragging through criminal court a considerable
time and not without the stress of a trial.
Self defense is concept that the police
department frequently chooses not to evaluate terribly deeply at
the investigation stage of a criminal case. That means
that, even if you have an excellent case for self-defense, you
may well find yourself arrested and being prosecuted. The
police will leave you and your lawyer to press the self-defense
claim rather than make serious inquiry before making an arrest.
In order effectively
to maintain self-defense, it is often important to enlist the
services of a good private investigator who can locate and speak
to witnesses quickly, before they move, forget, or otherwise
become unavailable. Often it is important to move quickly
because the District Attorneys and police will frequently tell
potential witnesses NOT to speak to defense investigators.
Often expert medical
witnesses are necessary to review medical records of
supposed "victims" in order to show that the injuries that they
claimed to have been defensive, were not.
Luckily, self
defense is one defense that jurors are generally prepared to
believe, perhaps above any other. Most people are quite
comfortable with the concept of defending yourself with physical
violence when necessary. Therefore, unlike other types of
perfectly good defenses such as "insanity defense", jurors are
generally comfortable with self defense as legitimate.
Mistaken
Identification
Another classic
defense to assault cases is mistaken identification. In
many cases, people are victims of assault by strangers in
settings such as bars, nightclubs, or sporting events.
There is a fight. Someone is injured. The police are
called. There is time spent "canvassing" the area for
suspects. The police decide that someone "fits the
description" and the person is presented to the victim. At
this moment there is great opportunity for injustice.
Many of us make the
mistake of believing that human beings are good at making
identifications. We like to believe that we would "never
forget a face". In truth, virtually all serious scientific
study of this broad issue suggests exactly the opposite - that
in fact, human beings are horrible at making identifications and
that all sorts of interference can destroy an eyewitness'
reliability.
Mistaken
identification probably is the single largest source of
injustice in the criminal justice system today. But jurors
are more often than not forbidden from hearing scientific
testimony that would undermine what amounts to the old wives
tales of belief in the reliability of human identifications.
One of the
advantages of a mistaken identification situation is that the
defense attorney is not placed in the position of having to
attack the complaining witness. In a mistaken
identification case, the witness is not lying. The witness
is simply mistaken. Therefore, up to a point, it permits
defense counsel to avoid conflict with a sympathetic witness.
One of the
disadvantages of a mistaken identification case is that jurors
tend to give more credit to the witness' confidence in the
identification than is probably justified. In a courtroom
in which the judge will preclude expert scientific testimony to
educate the jurors as to the problems of identification
testimony, it can be difficult to overcome the "I'll never
forget that face" type of testimony that can sometimes result.
From time to time,
mistaken identification cases can yield some interesting and
dramatic results. In one recent case of mine, the
prosecutor asked the victim to look around the courtroom for the
person who attacked him. Normally this is little more than
a show staged by the Government. There was nobody in the
courtroom except the jurors, the court personnel, my client and
I. The defendant was not hard to find. But lo and
behold, the witness looked around the courtroom for a minute
that seemed like an eternity and then said that he could not see
the person who attacked him. There was no identification
made. Case dismissed. Just like on television.
That was exciting, but again, my client had to endure the
lengthy and stressful process that ended with this dramatic
courtroom scene.
