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People in Mineola often throw out the word “assault” to describe any manner of different offenses. Some may use it to describe a verbal tirade on directs at another, while some might cite in cases where an actual physical altercation occurred. However it is used, you likely care the most about its context when it is used against you. The circumstances of an alleged assault will often dictate the criminal charges that accompany it. The added description of “aggravated” used in the accusations against you should be cause for concern. Yet we here at The Law Firm of Michael R. Franzese can assure you this descriptor cannot simply be applied to a case randomly. Victims of supposed assaults may all believe that the actions against them were aggravated, yet such an assertion is typically based off emotion rather than actual fact. Having a firm definition of what qualifies as aggravated assault is important because the potential penalties that you may face from it are typically more severe than those seen in standard assault cases. Fortunately, the law does establish such a definition. Per the New York Penal Code, your alleged assault is only considered to be aggravated in two scenarios. The first is if you are accused of assaulting a police officer or peace officer (that you know or reasonably should have known to be such) with a deadly weapon or dangerous instrument while he or she is in the course of performing his or her duties. The second is if you supposedly commit a third degree assault against one under the age of 11 after having been convicted of a similar offense in the last 10 years. Both offenses are classified as felonies (Class B and E, respectively). More information on defining assault charges can be found here on our site.

Like other criminal offenses, an assault and battery charge can have lasting consequences. A conviction can result in expensive fines and even jail time. Beyond that, it can seriously damage your personal and professional life. You could lose your job or professional license due to a criminal conviction. You might even have problems finding a new apartment in Mineola and other cities or run into various other complications due to your criminal record. This is why building a strong defense is so important to your future. There are a number of defense strategies available to people facing an assault and battery charge, depending on the specific circumstances of the case. One of these possible defenses might apply to your situation. Self-defense In general, self-defense is one of the most common strategies that people use to fight back against an assault and battery charge. In order for a such a defense to have a chance of success, there are four factors that must be present. First, you have to prove that you were facing a threat of harm or force. Second, you must prove that you were afraid for your safety and that you had a reasonable basis for this fear. Third, you must not have initiated or provoked the other person to threaten you. And, finally, you did not have a good chance of extricating yourself from the situation. Defending another person You might be able to claim that you were defending another person. You will have to prove that the same conditions existed as in a self-defense situation except that you were defending someone else. Like with a self-defense strategy, you will have to prove that you had a good reason to believe that the person you defended was under threat of harm. Defending your property You might be able to successfully claim that the assault and battery occurred because you were defending your property from invasion or another illegal act. For example, if someone tried to unlawfully enter your home and you used physical force to protect your property, the court might rule in your favor. However, keep in mind that the law is typically more divided in situations where someone is defending property or uses force in a property dispute. If you are facing an assault and battery charge, it is important to remember that you do have options. With the right defense, you might be able to successfully fight back against the charges and avoid a conviction.

There is no pleasant way to put it: violence takes place on any street, at any school and within any walls. Because this harsh truth is so common, some New York residents face obstacles when attempting to prove that a crime never happened in the first place. An assault charge can muddy the waters even further, as it can be difficult to separate fact from fiction. Whichever the case, those facing assault charges that have no factual grounding can find the process challenging to navigate. Many different opinions surround false allegations of violence, and an article in Quartz takes a look at what those viewpoints might say about the issue’s bigger picture. How does one differentiate between true and false assault accusations? Quartz unearths statistics from the National Registry of Exonerations to show that, since 1989, 52 cases in which men faced assault charges ended in exoneration after they were found innocent. During that time, 790 people received exonerations for murder charges. The Quartz article also points out that a large majority of those who are the subject of a false assault complaint (such as rape) never learn of the allegations to begin with, as many are dropped. With rape specifically, Quartz ruminates on the number of underage girls who go through an unwanted pregnancy or are out past curfew and lie to parents about an assault — many of these instances end in police reports at parents’ requests. Men Against Abuse Now, an all-male group against violence at Stanford University, provides numerous resources on the myths of false accusations. One resource states that roughly two percent of all rape and other sex charges are ultimately false; this percentage is the same as other felonies. However, MAAN also estimates that only 40 percent of all rape cases reach the police, as many go unreported. In addition, only one in two rape claims result in prosectuion. The tricky aspects of assault charges make it all the more important to deal with such situations promptly and appropriately.

You may think that so many people in Mineola cite self-defense in response to criminal accusations that such an assertion has lost all validity (and thus no one will believe you when you rightfully claim it). However, the law does indeed recognize that there are situations where conduct that would otherwise be deemed to be assault is justified. Section 35.05 of the New York Penal Code describes such situations as when you need to act to avoid an imminent injury that may come through no fault of your own that is serious enough that, “according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.” While that seems straightforward, you may wonder exactly what situations the law defines as warranting such action. These are stated to include: Defending yourself Defending a third person Defending your home Preventing the theft of your property Preventing criminal mischief to your property However, your ability to claim self-defense is not valid if you were the initial aggressor in a confrontation, or your conduct intentionally provoked your attacker into an altercation. The law also recognizes uses of justifiable force that do not necessarily involve self-defense. These include when you, as a parent, guardian or teacher, use it on one under the age of 21 in your care to promote said person’s welfare and maintain order. Order may also be obtained through force if you work transporting passengers and believe it to be necessary. If you are a doctor, you may use it when providing necessary treatments to patients or restraining patients under the age of 18 (with parental consent). You can also use it to prevent one from committing suicide.

In the midst of the uproar surrounding what is now known as the “Harvey Weinstein effect,” the definition of sexual assault has taken on a myriad of meanings. At the end of the day, however, one of the most important factors in such cases is that of proper investigation. It is true that countless powerful figures, including many in New York, have faced accusations of sexual assault. But what are Americans to make of this complex issue? When an overwhelming number of men and women came forward with personal accounts after the initial revealing of Harvey Weinstein’s crimes, the ways the country looked at sexual assault altogether shifted in a way it never had before. The New York Times acknowledges this change in attitudes in the ways people address sexual assault, adding that with this unfortunate news comes opportunity for social change. Yet this serious problem follows a decades-long battle on assault nationwide, including the issue of sexual misconduct on college campuses. Will the Weinstein effect help colleges better prepare in cases of assault? The Times points out that, while the number of students who have come forward with accounts have been on the rise, the number of those who make official reports of these accounts has remained scarce. Perhaps it is the wide range of definitions for sexual assault that discourages victims from coming forward in the first place. Findlaw clarifies New York assault laws and mentions the many routes sexual assault cases can take. For example, the broad term “sexual abuse” encompasses the subjecting of another person to sexual contact without that person’s consent. It is important to note that New York deems all aggravated sexual assault offenses as felonies. Despite the controversy that sparked with Weinstein’s exposure, all American citizens deserve a fair investigation. When it comes to defenses of sexual assault allegations, defendants may seek legal protection to ensure security in personal reputation, profession and other areas of life.

There are times when a person charged in New York with a crime such as assault becomes the subject of a criminal court order of protection. This order may be necessary before the defendant secures bail or other release from custody pending his trial. As noted by the New York State Unified Court System, like a family court order of protection, with a criminal court order of protection the complaining witness or victim of the alleged crime need not have any particular relationship with the defendant. To have an order of protection issue from a family court, the family or intimate relationship must have existed, unlike in criminal court. An order of protection is requested by the district attorney Typically, the state district attorney prosecuting a criminal case against the defendant will ask for the order of protection on behalf of the alleged victim. However, it is the judge who makes the decision of whether the request is appropriate for an order and what the order’s terms will be. It is a very case-specific decision. Violating an order of protection is a crime Once a criminal court order of protection exists, a defendant who fails to comply with the order may find him or herself the subject of another criminal charge. That other crime is the violation of the order of protection itself. The New York Consolidated Laws, Criminal Procedure Law, section 530.13 governs the issuance of a criminal court order of protection when the victim and defendant are not family related. An order of protection may include many conditions It can include many conditions required of the defendant in the order of protection, including the following: Staying clear of the victim’s home, job or school Abstaining from any kind of interference with the victim or family of victim, including threatening, scaring or bothering them Abstaining from intentionally hurting or killing a companion animal to the victim or child in the home of the victim, without justification Such an order of protection can be a tool to protect witnesses in addition to a victim of an alleged crime.

If a person has been arrested for a crime such as assault in New York state, the arraignment will typically arrive quickly, perhaps in less than 24 hours. However, the short time between arrest and arraignment is important because a defendant may otherwise be waiting in a jail cell for the opportunity meet the judge. The arraignment is very significant because it allows the defendant certain rights, including the following: Learning of the precise charges against him or her Learning of the right to an attorney Making an initial decision on the plea The defendant will also have the opportunity to seek bail. Arraignment allows defendant to learn what his rights are At the beginning of the arraignment, the defendant learns of the charges against him or her. The court will also inform the defendant of other important rights including the right to trial and the right to have an attorney. Defendant makes an initial plea at the arraignment The arraignment is also the day the defendant initially decides whether to plead guilty or not guilty to one or more charges. If he pleads guilty, no trial will be necessary on the charge and he can move on to the sentencing phase. Otherwise, he or she will plead not guilty and pre-trial activities will begin. Those will include the sharing of discovery so the defendant can learn what evidence actually exists against him. It may also be a time period where the state and the defense each file motions seeking preliminary orders from the court. Defendant may secure his freedom on bail at arraignment The arraignment is also the time to seek bail, if necessary. Without bail or other release pending trial, a defendant will remain incarcerated until trial which can be quite some time. As such, in order to live his life as he knows it while waiting, a defendant will typically be very interested in securing his own release on bail if he is not pleading guilty to the charge. Bail amounts can be high or relatively low, depending on the charges and surrounding circumstances. The defense attorney will strive for low bail or no bail to allow the client the best chance of release. There is also the possibility of no bail, where the court releases the defendant on his or her own recognizance. At arraignment, the defendant’s attorney may also take the opportunity to discuss the matter with the prosecutor prior to appearing before the judge, which can lead to more favorable possibilities regarding bail or plea.