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Trying to get your assault charge dismissed in NYC?  Read this before you accept a plea to a lesser charge.


Remember that an assault conviction-- or even a reduction from assault to a disorderly conduct --can cause problems with your present and future job prospects.

 

People who were charged with assault and  either pleaded guilty to the assault or pleaded to a disorderly conduct as a plea bargain for the assault often call me complaining that they have trouble with background checks because of the conviction.  


Even people who pleaded to the reduced charge of disorderly conduct call complaining that the disorderly conduct conviction is causing them problems.  Sometimes a prospective employer wants to see the original charge.  


Many of these people pleaded to the disorderly conduct charge believing that the disorderly conduct conviction would be sealed after they took the plea.  They tell me that they were told that by their lawyers.  Sometimes the judges will even say that in court at the time of the plea. Unfortunately their lawyers were only half right.  The "seal" that a person is entitled to when pleading to a disorderly conduct that is a reduction from an assault is just a "partial" seal under CPL 160.55.  This partial seal means that while the arrest records are destroyed, the court file remains permanently open and accessible to nosey background checkers.  The background checkers are free to go to the court and look through any part of the file that is public record.  This includes the original complaint.


The better way to get an assault charge away from the prying eyes of background checkers is to get it completely sealed through either an outright dismissal or an ACD.


If you still have questions call me at 212-786-2999 for a free consultation before you plead guilty so that you understand what the consequences of your plea will be.



What type of assault case do you have?


Assault cases in NYC, just like asault cases anywhere else, come in several flavors. ​ Often, in a crowded place such as NYC an assault arrest results from a fight in public between two strangers,  This can happen when the NYC bars are about to close, on the sidewalk or in crowded subways.  Sometimes an NYC police officer witnesses the altercation or one of the participants in the fight will seek medical attention at a local hospital or clinic and the police are notified.   A "61" (complaint) gets filed and then the subject of the 61 is brought to the precinct for questioning and then arrested.   Sometimes, when the fight is witnessed by NYC police officers, they arrest both participants for assault  (or sometimes--if the participants are "lucky" just for disorderly conduct).


Another common type of assault is the result of a fight between two persons living in the same household. This is generally referred to as domestic violence.  These cases usually start when someone gets out of line at home and 911 is called.  Then the police show up and make an arrest for assault.   Oftentimes, the person arrested will be released by the judge at his/her court appearance when there is no history of domestic violence.  But in almost every case the judge will issue an order of protection forbidding the person from returning to the home or having any contact with the alleged victim of the domestic violence.  These orders of protection can create serious disruptions for people's lives and can last for many months. The good news about domestic violence cases is oftentimes when their is no record of prior violence and injuries, if any, are not severe, the prosecutor will often be amenable to a "family ACD," often with conditions including anger management classes, etc...   The family ACD allows for the dismissal of the assault charge at the end of a year. 


Regardless of whether the charge resulted from a domestic dispute, or a dispute with a stranger on the subway, it needs to be handled properly.  Assault, even at the misdemeanor level, leaves a permanent mark on one's criminal history.  Potential employers might disqualify an otherwise perfect candidate because of an assault conviction.   NYC Prosecutors are also often reluctant to offer good plea deals on assault charges.  Rarely, the prosecutor will offer an ACD to the assault  charge, which will result in a dismissal and sealing of the charge.  If an ACD is not feasible, another alternative is a 240.20 (disorderly conduct") .   But the 240.20, although sealed at the arrest level, leaves a public record in the courthouse where the charge was heard.  An ACD is sealed under CPL 160.50 and does not leave a public record at the Court House, so naturally it is a much better disposition than a 240.20.


One line of defense on an Assault charge in NYC is attacking the sufficiency of the complaint. The assault complaint is insufficient when it fails to allege non-hearsay facts that support the elements of


  1. physical injury and
  2. the intent to cause physical injury.


Unfortunately, this attack can be difficult to prevail because the prosecutors almost always include boiler-plate phrases such as  "substantial pain" to every complaint.  This language usually insulates the complaint from a successful sufficiency attack with regards to the physical injury element.  Although some judges will find an allegation of substantial pain, with not further description of the injuries too conclusory to support a charge.  For example, redness, swelling, contusions etc.. even with an allegation of substantial pain may be insufficient to support the assault charge.   But in my experience, the facts in the complaint are usually  sufficient as far as the physical injury element is concerned.


The complaint also has to allege facts showing that the defendant intentionally caused the physical injury.  Again, this element is usually sufficiently substantiated.  For example if the complaint alleges that Defendant "kicked complainant in the head", or "punched complainant in the face with a closed fist."  That is usually enough to allege the "intent" element.


But regardless of whether the complaint sufficiently alleges the elements of an assault.  The prosecutor is not considered ready for trial until these allegations are sworn to by a person with firsthand knowledge of them.  This means that either the complaining witness or someone who witnessed the assault will have to sign a document attesting to the veracity of the allegations.


With several exceptions, if this document is not filed within 90 days of the defendant's first court appearance on the charge, the case may be dismissed pursuant to CPL 30.30.


If you have an assault charge pending in an NYC criminal Court and want to fully understand your options  Call me at 212-786-2999 or complete the form to the left and tell me about your case.

Assault