Assault on Government Agent, Law Enforcement, and First Responders in New York

In a city as busy and bustling as New York, it is common to witness people engaged in disagreements. Often, these disagreements can escalate beyond words and rise to a physical altercation. In the heat of the moment, one violent incident can result in an arrest and charges for assault. It is worrisome enough to face these allegations if it is a confrontation between so-called “civilians.”

A conviction can result in jail time, fines and other penalties not to mention a negative image in the community and in the workforce. Worse are situations where the incident involves a person in a position of authority. In such a case, the charges and accompanying penalties for a conviction are harsher.

Why do you need an experienced criminal attorney?

People who are facing these allegations must be cognizant of their rights and be protected and represented by an experienced criminal attorney. People of authority whose job it is to provide protection, address emergencies and enforce laws include police officers, peace officers, firefighters, emergency medical service professionals, and judges.

Charges of assault or aggravated assault against anyone in these professions will lead to an arrest. There is a perception that an assault charge requires physicality and an overt attempt to punch or kick. Other physical actions can spark an arrest for assault.

For example:

If a law enforcement officer is trying to enter a residence and a person tries to prevent that by placing his or her hands on the officer intending to stop them from doing their duty and causes physical injury, that will be considered an assault on the police officer.

Another example is if a firefighter is checking for a gas leak at a business and the business owner or employee physically prevents the firefighter from doing so by pushing, slapping, punching or kicking.

The simple act of preventing the worker from performing their job and causing physical injury will lead to an assault charge. Depending on the severity and circumstances, it can rise to an aggravated assault charge. These examples are obviously not as pronounced as hitting with the hands, feet, head or using a weapon to cause injury.

New York State Penal Law for assault and related offenses list when a person will be charged.

For cases related to the above-listed jobs,

Section 120.08 refers to an assault on these individuals with the result being that they suffer serious physical injury.
Section 120.09 refers to an assault on a judge with the judge suffering serious physical injury.
Section 120.11 refers to aggravated assault on a police officer or a peace officer in which there was an intent to cause serious physical injury while knowing or there being a reasonable expectation that that person is simply doing his duties and the injury stemmed from the use of a dangerous instrument or a deadly weapon.

What are the charges if convicted?

Being convicted on these charges will yield severe and life-changing penalties.

120.08 and 120.09 are both Class C felonies. A conviction will result in between 3.5 years and 15 years of incarceration.
For 120.11, it is a Class B felony. A conviction will result in five to 25 years of incarceration. The range of sentencing will hinge on the severity of the crime and whether the person had prior felony convictions, prior convictions factors in when the person had committed and was convicted of felonies in the past 10 years.
A non-violent predicate considers if the person had a non-violent felony conviction in the previous 10 years.
A violent predicate will relate to a person who had a prior violent felony in the last 10 years.
And a persistent felony offender will have had two or more felony convictions. For persistent offenders, a life sentence is possible.

Being convicted will not only deprive a person of freedom with an extended jail sentence, but it can also hinder their future after they have paid their debt to society. A felony conviction on a person’s record can be perceived as a negative in multiple contexts including trying to get certain jobs, obtain professional licensing, enter the military, or be admitted to a university or trade school.

How to determine if a person has a history?

Since a significant amount of information is now available online, a person’s arrest history can be discovered at the click of a button and cause them to be poorly perceived in the community. The mere mentioning of a person who was convicted of assaulting law enforcement and emergency services denotes a negative connotation that no one wants to have associated with them.

What are the defenses to plead not guilty?

Just because there was an altercation with a first responder or anyone else in law enforcement, it is not indicative of fault for the accused. There could have been extenuating circumstances that rendered the person unaware of what he or she was doing such as a reaction to medication or a psychotic episode.

This can be used as part of the defense if it is verifiable and a medical diagnosis is available to explain why they behaved the way they did. Perhaps the officer did not identify him or herself as they are legally obligated to do.

There is a difference between resisting arrest, preventing emergency responders from doing their jobs and defending oneself when there is an attack and the accused person did not and could not have known that the attack was being perpetrated upon law enforcement, a judge or a first responder.

Being arrested and charged with assault does not automatically turn into a conviction.

It is wise to remember that simply being arrested and charged with assault on a judge, a law enforcement officer, a member of the fire department or anyone in the previously mentioned categories does not automatically mean there will be a conviction. There are viable strategies to lodge a defense. Plea bargains are possible and could be beneficial.

Here is an example:

One recent case in which a man was accused of having bitten off the finger of a law enforcement officer ended in acquittal. The man spent seven months in jail after being accused of breaking the windows of a vehicle. Facing criminal mischief charges, he was accused of fighting with law enforcement as they attempted to put handcuffs on him while he was already in custody.

As he struggled with police, he was said to have bitten an officer’s finger off and subsequently swallowed it. After that, he was charged with assault on a law enforcement officer and resisting. Fortunately for him, however, there was a surveillance video. In the video, the man was on the ground with four officers on top of him.

The officer whose finger was bitten off had covered the man’s mouth to stop him from yelling to another inmate that the other inmate should remember his name. It was during the fight that the officer’s finger was bitten off. According to his attorney, the man had tried to show officers that his leg was wounded when the officers assaulted him.

The attorney convinced the jury – with help from the surveillance video – that the man could not have intentionally gotten into position to bite the officer. All officers stated that the man’s hands were cuffed behind him.

When the jury was tasked with deciding the man’s fate, it took less than one hour to acquit him. He was also acquitted of the initial justification for his arrest, breaking the windows of the vehicle.

This case is an example of how a qualified attorney who is experienced in formulating a defense for clients who have been accused of assault on a law enforcement officer can use every tool to gather evidence that exonerates a client. At the very least, reasonable doubt can be sowed, and this can spark an acquittal.

To Avoid Conviction when Proper Protocol is not performed.

In many incidents, while there might not be video evidence that the officers’ and prosecutors’ version of events was inaccurate, there are other strategies that could be effective.

If, for example, the officers did not adhere to the proper protocol when investigating a case, and the person who was being investigated was unaware that it was law enforcement, a situation easily escalates into an altercation and charges of assault against a law enforcement officer when it is possible that the suspect would otherwise have complied had he or she known who the victim was.

Even if there is no video evidence to help with exoneration, the defendant can show that there was a threat of harm or unlawful force; they were legitimately concerned about their own safety; they did not commit any harm nor did they provoke the incident; and there was no possibility of retreat or escape from the situation.

What to do when an officer does not adhere to the protocol?

A mistake that people frequently make after they have been arrested is to talk to the arresting officer and others once they have been taken to the police station. Doing so is always a mistake, but that mistake is compounded after the Miranda rights have been read to them detailing their right to remain silent and their right to an attorney.

This is especially common if there is an accused assault on law enforcement, a judge, a firefighter or any other first responder. Most will be immediately aware that they could be confronted with far worse penalties if they are convicted on these charges and to ingratiate themselves with the officers, they could believe that cooperation will yield long-term benefit. That is rarely the case, but even if it is, it is still imperative to have legal advice before saying anything.

After being Mirandized, anything the suspect says can be used as part of the trial. With an attorney, the legal representative speaks for the client and prevents tricks and traps that officers and other law enforcement officials tend to use to extract confessions and accrue evidence. It is useless to negotiate with an officer. Many might think they can benefit by being cooperative, but that will do little more than strengthening the case against them.

An experienced attorney will provide an analysis of the case, recommend how to proceed, and craft a strategy for trial. That can include assessing the viability of a plea agreement or if there is a good chance of an acquittal by moving forward. There might have been mistakes made during the arrest that render some of the evidence inadmissible. It is possible there were extenuating circumstances that cloud the initial justification for the arrest.

Call Us Now, We May Be Able to Help.

Before responding to any questions from law enforcement or prosecutors, calling for legal assistance can be one of the key factors toward a successful resolution. A lawyer can assist with these cases by making certain the client knows the possible prison time, fines and long-term consequences for a conviction after assaulting those in law enforcement, firefighters or judges. The consultation is confidential and having a lawyer who is experienced in criminal defense in New York is critical from the start.

Sources for Assault on Law Enforcement Blog Post

1) ypdcrime.com 120.09 Assault on a judge

2) ypdcrime.com New York State – Felony Classes and Sentences

3) 120.08 Assault on a peace officer, police officer, fireman or emergency services medical

professional

4) ypdcrime.com 120.11 Aggravated assault upon a police officer or a peace officer

5) New York Daily News – “Man who chomped off piece of a cop’s finger is acquitted and set

free in time to greet newborn son,” Thomas Tracy, Nov. 28, 2018.