ASSAULT AND BATTERY Category Archives — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

The Importance of Credibility During Suspect Identification

December 19, 2024 | Peter Howard Tilem

Recently a juvenile who was adjudicated a Juvenile Delinquent in Family Court recently won an appeal. When a victim or witness makes an identification after a crime, the identification must be both credible and consistent. A recent case before the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, goes to show just how important this credibility can be in a criminal case. The takeaway from the appellate case is clear: if you are named as a suspect or defendant, make sure your attorney challenges the identification process in any way that could be helpful to your case. With the right kind of challenge, you may be able to get your charges dropped completely.

Case Before the Second Judicial Department

In the appellate case, a complainant saw several black males riding bicycles, then a few moments later, he noticed that someone struck him from behind. The complainant was unable to see who hit him. He testified both that he had no idea who hit him and, inconsistently, that he had noticed the group of men behind him right before he was struck. The complainant further indicated both that he saw the assailants’ faces “for a little bit” and that he only saw the backs of the assailants’ heads.

First Degree v. Third Degree Assault in New York

September 16, 2024 | Peter Howard Tilem

When an individual is charged with assault, the proceedings can take many different forms. It can depend, in part, on what kind of assault the State alleges the defendant committed. In an opinion that recently came out of an appeals court in New York, the court discusses the difference between assault in the second degree and in the third degree, providing an apt reminder of the different elements and consequences of each crime.

Facts of the Case

In the recent case before the Appellate Division, First Department, the defendant was convicted of attempted assault in the first degree and assault in the second degree. The conviction was based on an incident in which the defendant punched and injured two individuals one night in Manhattan. At least one other person was involved in the attack, and that second person used a weapon, which the prosecution described as a “long, thin, dark-colored object” during trial.

Assault in the Second Degree

On appeal, the defendant argued that the court should have granted his request to instruct the jury that he could have been found guilty of assault in the third degree in instead of assault in the first degree. The difference between the two crimes is important. To be found guilty of assault in the first degree, a jury would have to find: that you had the intent to cause serious physical injury (and did cause injury); that you intended to cause injury and used a dangerous instrument (i.e., a weapon); that you assaulted an official; that you recklessly caused injury with a weapon; that you intentionally caused someone to become unconscious; or that you injured someone when committing a felony.

New York Court Decides Prosecution Properly Charged Defendant in Burglary-Related Case

May 8, 2024 | Peter Howard Tilem

In a procedurally complex case, the New York Court of Appeals recently issued a decision reversing an appellate court’s decision in favor of the criminal defendant. The defendant originally faced charges after he broke into a college dormitory, supposedly attempting to sexually assault girls in the dormitory. At trial, the defendant was convicted of second-degree burglary but acquitted of a second offense, “burglary in the second degree as a sexually motivated felony.” He appealed; the appellate court reversed; and the New York Court of Appeals ultimately reversed again to reinstate the defendant’s conviction of burglary in the second degree.

Burglary v. Burglary as a Sexually Motivated Felony

The state first charged the defendant with “burglary in the second degree as a sexually motivated felony.” Under this charge, the prosecution would have to show that the defendant 1) committed the burglary and 2) committed the burglary because, in substantial part, of his own sexual gratification.

New York Defendant Successfully Appeals Sentence in Assault Case Based on Age at His Time of the Crime

October 30, 2023 | Peter Howard Tilem

In a recent matter before the Supreme Court, Appellate Division, Third Department, the court modified a defendant’s judgment in his favor, vacating part of his sentence for an assault conviction from 2013. The defendant asked the court to reconsider part of his sentence given his young age at the time of the conviction. The State conceded that the sentence should be altered, and the Court ultimately granted the defendant’s request.

The Facts of the Case

According to the opinion, the defendant pled guilty to one count of assault in the first degree and one count of assault in the second degree in 2013. Months later, the defendant appealed, arguing that his plea should be vacated because the court did not take into account that he might have been eligible for youthful offender treatment, which typically means that a defendant is sentenced to less time in prison because of his or her young age at the time of his or her conviction and which would mean that he doesn’t have a criminal record.

The court denied the defendant’s appeal, and the defendant challenged this decision. The higher court decided it was willing to at least hear the defendant’s argument regarding his position that the lower court should resentence him given his age at the time of the conviction.

New York Defendant in Reckless Assault Case Challenges Lower Court’s Denial of Motion to Suppress

October 11, 2023 | Tilem & Associates

In a recent assault case in New York before the Appellate Division, Second Department, the defendant asked the court to reconsider a lower court’s denial of his motion to suppress. The defendant was charged with and convicted of reckless assault of a child and endangering the welfare of a child. On appeal, he argued that because no one informed him of his Miranda rights, the statement he made to a police officer was inadmissible in court. Reviewing the record, the higher court denied the defendant’s appeal, affirming his conviction as well as the resulting sentence.

Facts of the Case

According to the opinion, the defendant first interacted with police officers in this case when his four-week-old baby was being treated for serious injuries in the hospital. Officers asked the defendant how his baby got the injuries, and they later discovered that the defendant had been shaking the baby, which ultimately caused the injuries.

The State charged the defendant, and he filed a motion to suppress the statements he made to officers in the hospital. According to the defendant, he revealed incriminating information during this conversation, and the statements were inadmissible because no one ever read him his Miranda rights, which are required under the law. The lower court denied the motion to suppress, and the defendant promptly appealed.

New York Defendant Loses Appeal After Standoff with Police Officers, While Appellate Division Highlights Elements of “Menacing a Police Officer” Crime

August 30, 2023 | Peter Howard Tilem

In a July 2023 case before the Appellate Division, Third Department in New York, the defendant asked for the court to reconsider his guilty verdict for menacing a police officer pursuant to Penal law 120.18. According to the defendant, there was insufficient evidence to allow a jury to find him guilty, and the court should vacate the conviction as well as the related sentence. The court looked at the facts of the case, weighed the evidence, and eventually disagreed with the defendant, keeping his conviction in place.

Facts of the Case

According to the opinion, two deputy sheriffs went to the defendant’s home because he had failed to pay child support in accordance with his legal obligation. The sheriffs knocked on the defendant’s door to serve him with a warrant for his arrest. The defendant refused to allow the sheriffs to enter, at which point they called for backup and then pounded down the door.

The officers found the defendant standing at the entryway to his home with a rifle. The officers retreated and took cover, and a stand-off ensued that lasted two hours. Eventually, the defendant exited his home, having abandoned the weapon. The officers arrested him.

New York Court Looks at Justification Defense in Recent Assault Case

August 13, 2023 | Peter Howard Tilem

As we have discussed, the defense of justification, or self-defense is one of the most important defenses that exist in New York criminal law. Once the defense of self defense is raised the burden is on the prosecution to disprove self-defense beyond a reasonable doubt. Recently, the Appellate Division, Second Department in New York denied a defendant’s appeal in a 2019 assault case in which the defense of self-defense was raised. Faced with the defendant’s appeal, the court looked at the entire trial record to see if it agreed with the defendant’s claim that he acted in self-defense. The Court pointed out that many of the issues raised on appeal were unpreserved for appellate review. Ultimately deciding the defendant’s argument was not persuasive, however, the court denied his appeal and kept the defendant’s original conviction and sentence in place.

The Facts of the Case

According to the opinion, the defendant faced criminal charges after he hit the victim of his in the face with an unknown hard object. The defendant hit the acquaintance multiple times with the object, then proceeded to punch him in the face. After the incident, the victim was rushed to the hospital, where he received emergency treatment and reconstructive surgery for his injuries.

The State charged the defendant with assault in the first degree. His case went to trial, after which a group of jurors unanimously found him guilty. The court sentenced the defendant to time in prison, and he promptly appealed. The higher court issued a decision on the appeal in July 2023.

New York Court Reverses Appellate Division’s Ruling on Sufficiency of the Evidence

June 15, 2023 | Peter Howard Tilem

In a recent case before a New York appeals court, the State asked for a reconsideration of an appellate division’s unfavorable decision. Originally, the defendant was convicted of assault in the second degree. In January 2022, the Appellate Division of the Supreme Court of New York reversed the defendant’s guilty verdict because, according to the court, there was insufficient legal evidence to support the conviction. In May 2023, however, that decision was reversed, given the higher court’s ruling that the evidence was, indeed, sufficient to show that the defendant had assaulted another individual. The case was then remanded back to the lower court for additional proceedings.

Facts of the Case

According to the opinion, the defendant was charged with assault in the second degree after a burglary incident in 2014. The defendant’s case went to trial, and he was found guilty as charged. First, the defendant appealed on the grounds that there was not enough evidence on the record to support the conviction. The reviewing court agreed, reversing the guilty verdict.

In 2023, however, the state of New York appealed. The higher court looked again at the evidence to determine if the original reversal was correct. Particularly relevant to the court’s review was evidence that the victim in the case experienced bleeding and swelling after the burglary incident. Hospital records indicated that the victim’s pain was “aching,” and the victim testified while at the hospital that the defendant had punched him in the face on the night in question.

New York Criminal Possession of a Weapon Conviction Reversed After People Fail to Prove Stick Was a Dangerous Instrument

May 13, 2023 | Tilem & Associates

In a recent assault case before an appellate court in New York, the defendant successfully overturned several convictions related to a Child Abuse case. Although, the top charge of Assault in the First Degree stood, the case outlines some limits on criminal possession of a dangerous instrument. Originally, the defendant was convicted of several crimes, including assault in the first degree, assault in the second degree, reckless assault of a child, criminal possession of a weapon, and endangering the welfare of a child. On appeal, she asked that the court reconsider these convictions. Ultimately, the court agreed that at least two of the convictions should be vacated, granting the defendant’s request in part.

The Facts of the Case

According to the opinion, the defendant was charged with a myriad of crimes based on injuries found on her two-year-old son. The State presented evidence that the child was violently shaken, bruised, and bitten on different occasions. He also sustained several brain injuries because of the shaking, and the State included medical reports as part of the evidence against the defendant.

At trial, the defendant admitted that she occasionally hit the child, pinched his skin, and bit him and punished him with a “bamboo stick”. She was later found guilty and was sentenced to time in prison as a result.

Defendant in New York Assault Case Successfully Overturns Part of Guilty Verdict

April 28, 2023 | Peter Howard Tilem

Recently, a New York appeals court published an opinion reversing a defendant’s conviction of assault in the third degree. Originally, the defendant was found guilty of three crimes, and on appeal, he argued that there was not enough evidence to prove he was guilty of one of the crimes. Breaking the crime into its elements, the court ultimately reversed part of the guilty verdict, delivering a favorable result for the defendant. Thus, while the defendant’s conviction stands in part, the Court reversed his conviction for assault in the third degree.

Facts of the Case

According to the opinion, the defendant was charged with three crimes: burglary in the second degree, assault in the third degree, and criminal obstruction of breathing or blood circulation. The charges were based on a singular incident, and the defendant’s case eventually went to trial. At trial in February 2019, the jury found the defendant guilty of all three crimes, and the defendant was sentenced accordingly. He promptly appealed, asking the higher court to overturn the verdict.

The Decision

On appeal, the defendant argued that one of the crimes, assault in the third degree, did not have enough evidentiary support to result in a guilty conviction. To be found guilty of assault, the prosecution must show that some kind of physical injury resulted from the incident in question. Prosecutors might bring in photos, video, audio, testimony from witnesses, medical records, expert medical testimony or testimony from the victim to support this element of the crime.