Domestic Violence - Assault or Battery

What is Domestic Violence?

Domestic violence occurs when one person tries to exercise control over another person who is or was their cohabitant, spouse or parent. Control can take many different forms such as- physical, verbal or financial. The one who has the control is known as the aggressor and the person being controlled is called the victim. Although there are multiple forms of control, the District Attorney’s Office in New York generally only brings charges against people who exercise physical control over the victim, and by doing so, cause a physical injury.

The potential charges related to domestic violence that can be brought in New York are known as: assault – in the first, second or third degree. First degree assault is where the aggressor a) intends to cause serious physical injury to another, b) does cause injury to the victim or a third person, and c) by using a deadly weapon[1]. Second degree assault has the same elements as first degree, but the aggressor either a) acts recklessly and not intentionally, or b) causes injury, but it’s not serious, or c) does not use a deadly weapon.2 Third degree assault has the same elements as first degree, except the injury is not serious and the aggressor acts either a) intentionally, b) recklessly, or c) with criminal negligence, using a deadly weapon.3

Other charges related to domestic violence that do not involve physical injury are known in New York as stalking and menacing. Stalking (aka: harassment in the first degree or menacing in the second degree) occurs when an aggressor intentionally and repeatedly harasses another person by following such person in or about a public place(s), or by repeatedly committing acts which place such person in reasonable fear of physical injury.4

What are the Consequences?

If you are accused of domestic violence, you may be charged with a felony5 or misdemeanor6 The District Attorney will take in account many different factors in deciding how to charge you, including the seriousness of your physical act (ie: strangling versus scratching), the victim's injury (ie: bruising versus open wound), and their office policy. Regardless of how you are charged, the consequences are equally serious and generally include: 3-4 years probation, 52 week batterer's treatment program; criminal protective order7, at least 30 days in custody, community service, restitution to the victim, firearms prohibition, domestic violence fine, and standard fines and fees. Worst of all, the domestic violence conviction will go on your permanent record and affect your future employment, state licensing and other benefits. Also, if you have a current or prospective case in family court involving child custody, a domestic violence conviction may negatively affect your custody rights over the child.8

With regards to time in jail, in New York, the punishment for domestic assault in the first degree is between 5-25 years because it is treated a B violent felony. The punishment for domestic assault in the second degree is between 2-7 years because it is treated as a D violent felony. Finally, the punishment for domestic assault in the third degree is less than one year because it is treated as a misdemeanor. All of these sentences can be enhanced if you have been convicted of a felony within the last ten years (excluding jail/prison time).

How We can Help You

Lavy Law is the best firm to help you win your domestic violence case. As a former prosecutor who has handled a multitude of domestic violence cases, we have insider's knowledge on how to get your charge dismissed or reduced. As a trial attorney who has taken domestic violence cases to trial, we know how to win your case before a judge or jury. As a domestic violence counselor who actively volunteers at a domestic violence shelter in San Francisco, we know how to empower you during this intimidating process like a coach would during a game.

Unlike most firms who limit their practice to criminal court, Lavy Law can help you defend your domestic violence case in family court and immigration court due to our multilateral experience. If you are the perpetrator, this means that your Lavy Lawyer will protect you from being punished multiple times by multiple courts. If you are the victim, this means that your Lavy Lawyer will provide you with better protection by using the tools offered by every court.

We encourage you to read our Recent Cases to see that we have won a case just like your own.

If you are you accused of a domestic violence offense, Contact Us for a free consultation.

[1]See Penal Law §120.10(1)

[2]See Penal Law §120.05

[3]See Penal Law §120.00

[4]See Penal Law §240.25; 120.12(2)

[5] A felony is the most serious of crimes, punishable by years in prison.

[6]A misdemeanor is defined as a less serious crime than a felony, punishable by one year or less in local county jail.

[7]A criminal protective order is a court order that prevents a person from harassing, contacting and coming within a certain distance of victim(s) and their residence.

[8]Under the Family Code, a domestic violence conviction creates a rebuttable presumption that an award of sole or joint physical or legal custody of a child is detrimental to the best interest of the child.

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