Assault Cases, including Gang Assault in New York City

Including Assault Cases in Queens, New York, Brooklyn, Bronx, and Manhattan

The Meaning of Assault in New York City

By Don Murray

Assault charges in New York City 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 City, 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 the correct analysis.

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.

Gang Assault

Gang Assault is one of the most poorly named of all the criminal offenses in New York State.  I say this because the first thing that naturally springs to your mind when you hear the term "gang assault" is that the offense must have something to do with gangs. 

It doesn't.   Gang assault has nothing to do with membership in a gang.  It isn't a special crime meant to target organized crime gangs.

The offense of gang assault is meant to address groups of three or more people working together to assault another person.  The Legislature should have named the crime "GROUP Assault" in order to avoid the obvious confusion that will be inevitably and naturally be caused by jurors hearing that defendants are charged with "Gang" Assault. 

Gang Assault deals with situations in which three or more people are accused of working together to commit an assault on another person.  Gang Assault is dangerous because the penalties for gang assault are very severe.  This combined with the fact that it is ever so easy to be lumped in with a crowd of others and the opportunities for bystanders to be sucked into false accusations is enormous. 

 

 

The Government’s most common approach to the investigation of assault charges is that when the police get to the scene, whoever happens to have the greatest injury is labeled the victim and whoever happens to be the least injured is labeled the defendant. The police and prosecutors in New York City are all but oblivious to the concept of self defense except to the extent that it represents a potential defense a year later at trial. Don’t ever expect the Government to pass up a prosecution of an assault because they are prepared to go on the record as concluding that it was self defense.
— Don Murray
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Assault and Gang Assault in New York City

New York City criminal defense lawyer Don Murray provides an overview of assault cases in the New York City criminal justice system.  Mr. Murray explains the meaning of assault cases, a couple of the most common defenses to assault (self defense  and mistaken identification), and the poorly named "Gang Assault" offense in New York.

Call 718-268-2171 for more information about Assault cases in New York or to schedule your free consultation with a New York criminal defense lawyer from Shalley & Murray.

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