NYS Domestic Violence Laws: Assault, Stalking, Menacing and Strangulation.
The most common criminal charges found in a case of domestic violence typically involve some form of physical or mental abuse. The big four charges are: Assault, Stalking, Menacing and Strangulation.
A domestic violence matter or “family offense” typically involves a defendant fighting both a criminal and civil matter in two separate courts. This is because the Criminal Court and Family Court share concurrent jurisdiction over family offenses. Thus, a victim/complainant may bring charges in both courts, one with law enforcement and civil charges in the Family Court and both cases can run at the same time.
Making matters more complicated in Domestic Violence cases, Judges in both Courts may issue simultaneous Orders of Protection preventing the accused from coming near or contacting the complainant or refraining from some form of conduct. Any violation of either Order from a Civil or Criminal Court will result in an additional Criminal Contempt charge against the accused.
The charge of Assault depends on the physical harm the accused intended to inflict as well as the actual physical harm suffered by the complainant. For example,
- Assault in the First Degree occurs when a person acts with the intent to cause a serious physical injury to another person and does injure that person or a third person, using a deadly weapon or dangerous instrument. NYS Penal Law defines a “Serious physical injury” as a physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.
- Assault in the Second Degree occurs when a person intends to cause physical injury but causes a serious physical injury. “Physical injury” is defined as an impairment of physical condition or substantial pain.
- Assault in the Third Degree occurs when a person (a) intends to cause physical injury to another person and injures either the intended victim or a third person; (b) recklessly causes injury to another person; or (c) with criminal negligence, causes physical injury to another person using a deadly weapon or dangerous instrument.
The charge of Stalking occurs when a person engages in conduct directed at another person knowing that such conduct is likely to cause or does cause material harm to the complainant’s mental or emotional health. Such as, a reasonable fear of material harm to the victim’s physical health, their safety or even their property or that of the complainant’s immediately family; or a reasonable fear that the complainant’s employment, business or career is threatened.
The charge of Menacing occurs when a person intentionally places or attempts to place another person in reasonable fear of physical injury or death by displaying a deadly weapon (e.g. loaded firearm, knife or brass knuckles) or a dangerous instrument (e.g. any used or attempted to be used which is readily capable of causing death or a serious physical injury) or, the person repeatedly follows the complainant, engages in a course of conduct or commits various acts over the course of time that place the complainant in reasonable fear of physical injury or death.
The charge of Strangulation occurs when a person obstructs the breathing or blood circulation of the complainant which results in a physical or serious physical injury.
Possible Defenses for any of these common domestic violence related charges includes but are not limited to:
- Justification (e.g. a parent cannot be charged with assault when they use non-deadly physical force on their child for discipline purposes).
- Self defense
- Medical purposes
- Mental disease or defect
New York State takes Domestic Violence matters very seriously. For example a person charged with Assault in the First Degree can be sentenced to 25 years in State Prison while a Strangulation Charge can result in up to 15 years’ incarceration. Often times, a defendant charged with Strangulation is simultaneously charged with Assault and likewise it is not uncommon to find a Stalking charge accompanied with a Menacing charge. Domestic Violence is a crime of aggression perpetrated in the heat of the moment. Often, one or both spouses require some form of therapy either for recovery, anger management or both. If you are charged with a Domestic Violence crime such as Assault, Stalking, Menacing or Strangulation, you need to contact legal counsel immediately to protect your rights and explore your options. Call my office at (845) 867-2812 to schedule a free confidential consultation.