Key Offenses Classified as Domestic Violence

In New York, acts of domestic violence are prosecuted under specific Penal Law sections, depending on the nature of the offense. Common charges include:

  *   Assault: Causing physical injury to another person.
  *   Menacing: Intentionally placing or attempting to place another person in fear of death or serious physical injury.
  *   Stalking: Engaging in a course of conduct that causes substantial emotional distress or fear.
  *   Harassment: Engaging in a course of conduct or repeatedly committing acts that alarm or seriously annoy another person.
  *   Strangulation: Intentionally impeding the normal breathing or blood circulation of another person by applying pressure to the throat or neck.
  *   Criminal Obstruction of Breathing or Blood Circulation: Similar to strangulation but may involve less force or result in less severe injury.
  *   Criminal Mischief: Damaging or destroying property belonging to another person.
  *   Sexual Offenses: Including sexual abuse, forcible touching, or rape.
  *   Coercion: Compelling or inducing another person to engage in conduct by instilling fear.

These offenses are categorized based on their severity, with corresponding penalties.

Penalties for Domestic Violence Offenses

The penalties for domestic violence offenses in New York City vary depending on the classification of the crime:

  *   Class A Misdemeanors (e.g., Third-Degree Assault, Harassment in the Second Degree):
     *   Up to 1 year in jail.
     *   Fines up to $1,000.
     *   Probation and mandatory counseling or anger management programs.
 
  *   Class E Felonies (e.g., Second-Degree Strangulation):
     *   Up to 4 years in prison.
     *   Fines up to $5,000.
     *   Probation and mandatory counseling.
 
  *   Class D Felonies (e.g., Second-Degree Assault):
     *   Up to 7 years in prison.
     *   Fines up to $5,000.
     *   Probation and mandatory counseling.
 
  *   Class C Felonies (e.g., First-Degree Strangulation):
     *   Up to 15 years in prison.
     *   Fines up to $5,000.
     *   Probation and mandatory counseling.
 
  *   Class B Felonies (e.g., Aggravated Sexual Abuse, Rape in the First Degree, Assault in the First Degree):
     *   Up to 25 years in prison.
     *   Fines up to $5,000.
     *   Probation and mandatory counseling.

In addition to these penalties, individuals convicted of domestic violence offenses may face:

  *   Protective Orders: Courts may issue orders of protection to prevent further contact between the offender and the victim. This can also result in defendants being prohibited from returning to their own homes or communicating with family members (such as children) while the charges are pending.
  *   Firearm Restrictions: Convicted individuals may be prohibited from possessing firearms.
  *   Employment Consequences: A criminal conviction can impact current employment and future job prospects.
  *   Immigration Consequences: Non-citizens may face deportation or difficulty obtaining citizenship.

Recent Legislative Developments

New York State has enacted several laws to address domestic violence more effectively:

  *   Melanie’s Law: Signed into law in November 2024, this legislation allows courts to issue orders of protection for all family members of domestic violence victims, regardless of their age. This law was prompted by the tragic murder of Melanie Chianese by her mother’s abusive ex-boyfriend in 2022. Previously, protective orders could only be issued for children under 18. Melanie’s Law aims to close this legal loophole and expand protections for domestic violence victims to all their family members.
  *   Domestic Violence Survivors Justice Act: This act allows for reduced sentences for individuals convicted of serious crimes, such as murder, if they can demonstrate that they were victims of significant domestic abuse. The law aims to provide justice for those who commit crimes in response to prolonged abuse.

Conclusion

Domestic violence offenses in New York City are treated with utmost seriousness, and the legal system provides various avenues for both prosecution and defense. The penalties for such offenses can be severe, impacting an individual’s freedom, reputation, and future opportunities. Oftentimes complaints are made to the police in the heat of the moment, but arrests may be made and cases pursued even where complainants wish to retract their complaints.

If you or someone you know is facing domestic violence charges, it is crucial to seek experienced legal counsel to navigate the complexities of the legal system and to ensure that rights are protected throughout the process. Matthew Galluzzo is a former Manhattan supervising prosecutor within the domestic violence unit. He is an experienced criminal defense attorney who has successfully defended dozens of people accused of domestic violence offenses of all sorts. If you or a loved one have been arrested for domestic violence, you should strongly consider engaging him to be your lawyer.

The trial judge will now be responsible for sentencing Mr. Majors. The defense lawyers may ask that the trial court overturn the jury’s verdict, but those sorts of motions are rarely granted. Instead, the defense lawyers will need to concern themselves for now with persuading the judge to impose a non-jail sentence. The court could sentence Mr. Majors for as much as one year in jail, which he would have to serve at the notorious prison on Rikers Island. However, the court could instead impose a sentence of up to three years’ probation (which would restrict his ability to travel, even for work), or other conditions like anger management or counseling. The defense attorneys will likely propose some sort of counseling program with community service and beg the court to not sentence him to probation so that he can travel to filming locations without interruption or complication. Obviously, this conviction may ruin his Hollywood career, as certain projects have already been put on hold or suspended as producers awaited the outcome of this trial.

If one had to predict, one would not expect the court to impose a jail sentence in a reckless assault case. First, Mr. Majors has no criminal history, which tends to militate strongly against jail sentences in relatively minor cases. Furthermore, the injuries sustained by Mr. Jabbari appeared to be relatively minor on the spectrum of assault cases; certainly, many assault trials involve much more serious injuries resulting in hospitalizations and/or permanent disabilities. Mr. Majors is a prominent person and the court might want to make an example of him, but he is also potentially able to do something positive for the community, as well. So, I would predict some sort of combination of anger management and community service, along with an order of protection in favor of Ms. Jabbari. The big question really is whether Mr. Majors will be sentenced to a period of probation, which would be a huge hindrance for his career.

The verdict is somewhat surprising here. There was some evidence that tended to suggest that Mr. Majors was a victim of Ms. Jabbari’s aggression. Indeed, he filed a report against Mr. Jabbari that did originally result in her arrest, as well. Moreover, an Uber driver who shuttled the two of them together about the time of the assault offered the opinion that Ms. Jabbari was initiating the conflict. It’s always difficult to second-guess strategic decisions made by attorneys in the trial, but Mr. Majors’ decision not to take the stand almost certainly cost him. Courts also instruct juries not to infer guilt from a defendant’s decision not to testify, but the jury had to perplexed by the fact that a charismatic stage and film actor would sit silently at the defense table and let his attorney make the case that he was a victim, without saying it himself.

Mr. Majors will be able to pursue an appeal if he so chooses, but appeals courts are loath to overturn verdicts based upon the facts. Typically, questions of guilt or innocence are entrusted to the jury, as are assessments of witness credibility. Those decisions usually remain undisturbed. If the defense can make the argument that the trial court made an improper legal ruling that had a material effect on the outcome, then they may have a chance on appeal. But there’s nothing in the record here that stands out as particularly controversial, in terms of legal decisions made by the court during the trial. So, it is more likely than not that this judgment will be affirmed on appeal.

The author of this article, Matthew Galluzzo, is a criminal defense attorney and former Manhattan prosecutor. As a prosecutor, he was a supervisor in the domestic violence bureau of the New York County District Attorney’s Office, the same office that prosecuted Jonathan Majors in this case. He was worked as an appellate prosecutor responding to criminal appeals, and later prosecuted murders and sex crimes cases. In 2023, in recognition of his service to the French government and his successful representation of dozens of French citizens, he was knighted by the nation of France and is now a Chevalier in the French Order of Merit.

If you or a loved one have been arrested and charged with misdemeanor assault or forcible touching in New York City, you should strongly consider contacting the experienced team at the Law Office of Matthew Galluzzo PLLC. Their lead counsel is a former Manhattan prosecutor with considerable experience representing foreign citizens, with a strong track record of success.

This interesting and unexpected exchange provides a fun example to consider New York criminal law: What charges, if any, might have applied to this slap had it happened onstage in New York?

The most significant plausible charge here would be the Class A misdemeanor or Assault in the Third Degree (Penal Law Section 120.00). That statute makes it a misdemeanor punishable by up to a year in jail to intentionally cause physical injury to another person. Here, however, it does not seem that Chris Rock suffered any physical injury significant enough to justify the charge. Indeed, although he was obviously dazed and it appeared to be a fairly hard slap, Rock carried on with his emcee duties and even made a few quips about what had happened. A physical injury, as defined by New York law, is supposed to be “substantial pain” and/or “impairment of a bodily function.” Surely Rock felt some pain from the slap, but it appears to have been too temporary to have really justified an assault charge under New York law.

Oftentimes, in situations like this, where the strike is forceful but the injury is fleeting, the defendant in New York gets charged with Attempted Assault in the Third Degree (Penal Law Sections 110/1120.00), which applies where the person tried to hurt the victim but did not actually succeed. That is a class B misdemeanor that could apply to what Smith did. Smith might argue that because he used an open hand, he only meant to send a message but did not intend to actually injure Rock. A closed fist punch, on the other hand, would have made such an argument more difficult.

Certainly, this act would be sufficient for a charge of Harassment in the Second Degree, in violation of Penal Law Section 240.26. That charge applies to any unwanted or offensive touching of another person. A conviction for this offense does not technically give someone a criminal record, as it is a violation, and violations are not classified as crimes under New York state law. However, this is a potential maximum penalty of 15 days in jail for this offense. It seems plain that if Smith had smacked Rock in New York and were arrested and charged with this offense, it would be virtually impossible to defend against a conviction. That being said, people without criminal records charged with this offense are typically able to resolve these cases without jail; counseling and/or community service and/or anger management are more typical punishments.

If you or a loved one are a Hollywood actor charged with smacking another celebrity onstage before a live television audience, you should strongly consider contacting Matthew Galluzzo, an experienced criminal defense attorney and former Manhattan prosecutor.

Ms. Exum is being charged with one count of Assault in the Second Degree, a class D violent felony in violation of New York Penal Law Section 120.05. A person is guilty of it when they intentionally cause injury to another person by means of a weapon or dangerous instrument. Stabbing someone definitely qualifies (indeed, if the injuries were more serious, she would be looking at Assault in the First Degree). This the appropriate charge here.

At arraignments, the judge will issue an order of protection in favor of the victim of the stabbing (i.e. Ms. Exum’s boyfriend/ex-boyfriend), precluding her from having any contact with him whatsoever. She cannot contact him electronically, through social media, in person, or through third parties (some judges even go so far as to say that you cannot like the other person’s social media postings). Even if Ms. Exum’s boyfriend forgives her and tries to call her, for example, she cannot speak with him or communicate with him without violating the order of protection and risking a re-arrest by the police. The order is not the victim’s to apply as he sees fit – it is issued by the court and must be obeyed. These sorts of orders are particularly complicated when the parties lived together, as the criminal defendant simply has to vacate and find somewhere else to sleep.

Frequently, victims/complainants in these cases do not wish to cooperate with law enforcement. When someone gets stabbed, the police are usually called, and an arrest usually happens. Police basically have to make an arrest in a situation like this. It is hardly uncommon for these victims to immediately try to undo the arrests or ask prosecutors to dismiss the cases. That doesn’t always work, however. Ms. Exum’s boyfriend/ex-boyfriend is not a plaintiff in a civil case, he is simply a witness in a criminal case prosecuted by the state. As such, prosecutors will get to decide whether to dismiss the case or not, regardless of the boyfriend’s preferences. And, the order of protection will remain in place so long as the prosecution continues. This is a frustrating reality for a lot of people involved in domestic violence cases.

As a practical matter, though, it can be very difficult for prosecutors to successfully prosecute domestic violence cases without cooperative victims. After all, their testimony is normally necessary to prove what happened during the crimes. However, there are some circumstances in which a prosecutor can prosecute a case even without a cooperative witness. Police have probably taken photographs of the injuries to Ms. Exum’s ex-boyfriend, and may have a 911 recording describing the crime in the heat of the moment (possibly causing it to be admissible at trial). Ms. Exum may have made admissions to police as to what happened, too. The statements that the ex-boyfriend made to emergency medical personnel might also be admissible at trial, even without his cooperation. Finally, it could be possible for prosecutors to subpoena the ex-boyfriend to testify about what happened, forcing him to either tell the truth or commit perjury under oath.

A stabbing case is serious and can certainly result in multiple years in prison. Assuming Ms. Exum does not have a criminal record, and the injuries are not too terrible, it may be possible for her to negotiate a deal for a misdemeanor with probation and anger management and counseling. But should she lose at trial, she could definitely face some time in prison.

If you or a loved one have been arrested for domestic violence, you should strongly consider contacting Matthew Galluzzo, an experienced criminal defense attorney who has helped celebrities, athletes, actors, models, doctors, lawyers, and a variety of financial professionals defend against charges of domestic violence.

Finally, it should be noted that although many crimes can be prosecuted in both state and federal court without violating the principle of Double Jeopardy, a state law crime prosecuted in federal court via the Assimilative Crimes Act cannot also be prosecuted in state court. See Grafton v. United States, 206 U.S. 333 (1907).

If you or a loved one have been arrested and charged with a crime occurring on federal property in the New York City area, you should strongly consider contacting the Law Office of Matthew Galluzzo PLLC. Many defense attorneys know state law but are unfamiliar with the unique procedures of federal practice. Matthew Galluzzo, however, is a former Manhattan state prosecutor with over twenty years of experience who now specializes primarily in the defense of federal crimes. Give him a call to discuss your case and his possible representation of you.

See also: Dept. of Justice: Assimilative Crimes Act.

1. Understanding the Process

The criminal justice system can be intimidating for a victim, so much so that many crime victims decline to even make a report or complaint. As a longtime former Manhattan prosecutor, Matthew Galluzzo can answer questions a crime victim might have about the process, including: 1) whether, and how the perpetrator will be arrested, 2) what the perpetrator might be charged with and what penalties he/she would face, 3) whether the crime victim will have to testify, and/or when and how often, 4) whether the crime victim will ever have to confront the perpetrator in court, 5) whether the crime victim’s identity will ever be known to the perpetrator, and 6) what sort of outcome the crime victim might reasonably expect. Many crime victims have found these sorts of consultations with Mr. Galluzzo to be invaluable, in that it relieves some of the stress in the process and helps them decide what course of action to take.

2. Protecting your Rights and Interests

For those victims who have chosen to make reports, Mr. Galluzzo can help protect their rights and interests throughout the process. Oftentimes, crime victims may themselves be at some risk for arrest or criminal prosecution based upon their complaints, and need an attorney to ensure the proper invocation of their Fifth Amendment rights. Victims should not assume that just because they are cooperating with law enforcement that they themselves are immune from punishment fo their own actions.

3. Advocating for a Result

Crime victims may also wish to have an attorney communicating with the prosecution to skillfully advocate for a particular result. Attorneys for victims can possibly help victims get full restitution in fraud cases, for example, or convince prosecutors to seek certain penalties in assault cases. The advantage of having an attorney for this purpose is that he/she should have a better understanding of the prosecutorial options. Moreover, a former prosecutor will be more credible in discussing these options with a prosecutor.

4. Bringing a Lawsuit

Victims of crimes may wish to pursue civil lawsuits against the criminals or the establishments where the crimes happened. These suits can be sometimes be brought after the criminal justice process has concluded, but can also be brought while the criminal case is pending. The decision as to whether or not to bring such a suit depends not only on whether the facts can be proven, but on whether money damages can actually be recovered from the perpetrator. Mr. Galluzzo has also assisted crime victims in bringing civil lawsuits against perpetrators of crimes. In many ways, his background as a former prosecutor makes him ideally suited to “prosecuting” a crime in civil court. He has helped victims of rape, sexual assault, assault, and other crimes sue individuals and establishments for money damages sustained by crime victims, and has helped them navigate the criminal justice system so as to maximize their results in civil court. Mr. Galluzzo is very selective about the cases that he pursues in this way, but is prepared to discuss the possibility with you.

If you or a loved one have been the victim of a crime, you should strongly consider contacting the Law Office of Matthew Galluzzo PLLC and speaking with Matthew Galluzzo, a former Manhattan prosecutor.

Cardi B is expected to enter a plea of “not guilty” to the following indictment charges:

• Attempted Assault in the Second Degree, in violation of Penal Law 110/120.05(1);
• Attempted Assault in the Second Degree, in violation of Penal Law 110/120.05(2);
• Assault in the Third Degree, in violation of Penal Law 120.00(1);
• Reckless Endangerment, in violation of Penal Law 120.20;
• Conspiracy in the Fifth Degree, in violation of Penal Law 105.01(1);
• Criminal Solicitation in the Fourth Degree, in violation of Penal Law PL 100.05(1);
• Criminal Facilitation in the Fourth Degree, in violation of Penal Law 115.00(1);
• Conspiracy in the Sixth Degree, in violation of Penal Law 105.00;
• Criminal Solicitation in the Fifth Degree, in violation of Penal Law 100.00; and
• 3 counts of Harassment in the Second Degree, in violation of Penal Law 240.26(1).

Both Cardi B and her lawyer have publicly denied her guilt because, according to them, no one ‘got hurt’. The defense of the case will not be so simply stated, however, since one of the charges carrying the heftiest punishment is based on the theory that Cardi B merely attempted to inflict serious injury. On top of that, a number of other charges allege Cardi B either solicited and/or facilitated the assault, and neither of these charges require that physical injury actually resulted. Without a doubt, the prosecution has dropped a comprehensive indictment on the Bronx rapper which will require an adroit (and probably technically nuanced) defense if the case is expected to be dodged in its entirety.

Cardi B’s biggest problem comes in the form of the two felonies she now faces (Cardi B was initially only charged with misdemeanors, but more serious charges were added by the Grand Jury after she turned down a misdemeanor plea). Prosecutors in the case have charged Cardi B under two alternative theories of attempted felony assault: in one, she is accused of attempting to cause serious physical injury to one of the bartenders; under the other, she is alleged to have attempted to cause physical injury with a dangerous instrument (conceivably a pipe, bottle and/or chair). Tracking the specific elements of these offenses, if a trial jury were to conclude that Cardi B (a) intended to cause one of the complaining witnesses serious physical injury and (b) attempted to cause such injury, she would be found guilty under Penal Law 110/120.05(1). Alternatively, if a jury were to conclude that she intended to merely cause physical injury and /or attempted to do so by means of a deadly weapon or dangerous instrument, she would also be found guilty under Penal Law 110/120.05(2). Either charge carries the potential for a term or imprisonment as high as 1 and 1/3 to 4 years in state prison.

Presumably, witnesses from the club will testify at trial (and have testified in secret Grand Jury proceedings) that Cardi B herself threw one or more of these objects at the complaining witnesses, or otherwise aided or facilitated someone in her entourage to do so. Whether or not she intended to cause physical injury as opposed to serious physical injury (or no injury…) will be a question for the trial jury to consider. Under New York Law, “serious physical injury” means 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. “Physical Injury” means impairment of physical condition or substantial pain. Bottles, chairs and Hookah pipes can certainly all qualify as dangerous instruments under the proper circumstances.

At trial, Cardi B will have a number of pathways to contest this charge (as well as the other charges). Depending on how the evidence actually develops at trial, she may even be able to contest the credibility of testimony purporting to establish her as being the individual who threw any object. Surely, her attorneys will attack the credibility of the complaining witnesses and elicit testimony tending to demonstrate any bias or motive to inculpate the platinum rapper on their part (such as the filing of or intent to file a civil lawsuit against the successful rapper for money damages).

Should Cardi B’s identity as an object-thrower be beyond dispute (and even if it isn’t) her attorneys will argue she never had the requisite intent to cause “death, protracted disfigurement, protracted impairment of health of protracted loss or impairment of the function of the bodily organ” – in other words, that she never intended to cause serious physical injury. The second felony charge may not be so easy to overcome, however, since the prosecution will only have to allege that the throwing of any of the aforementioned objects was done so with the intent to cause “physical injury” as opposed to “serious physical injury.” After all, proving that a person who threw a bottle or chair intended to cause some type of physical impairment or substantial pain presents a much lower threshold of proof for prosecutors.

Aside from the felonies she faces, Cardi B also faces up to one year in jail if convicted of any of the several misdemeanors she has been indicted for:

• Reckless Endangerment. Cardi B is accused of “recklessly engaging in conduct which created a substantial risk of serious physical injury to another person” under Penal Law 120.20. This charge will be a mixed bag for Cardi B, since prosecutors will once again have to prove she intended to cause “serious physical injury” (which obviously comes with a high level of proof) but will not have to prove she actually intended to cause such injury. Rather, prosecutors will only have to prove she consciously disregarded a risk that, for example, throwing a chair at someone presented the risk of causing such injury.
• Assault in the Third Degree. Cardi B’s public assertion that ‘no one got hurt’ will constitute the best defense to this misdemeanor charge. Again, prosecutors will have to prove that (a) Cardi B (b) actually caused physical physical injury to another (c) with intent to do so. [For some reason prosecutors declined to prosecute her under a reckless theory.]
• Conspiracy and Solicitation Charges. Cardi B is charged with a number of “inchoate” offenses whereby it is alleged she agreed with one or more persons to engage in or cause assaults, and/or that she solicited, requested, commanded, importuned or otherwise attempted to cause others to engage in the commission of a felony. Cardi B’s attorneys will likely argue to the jury that no such “agreement” took place, and dispute that any fight was the result of such coordination. Prosecutors will downplay the standard of proof for such an agreement and argue that Cardi B had a motive to attack at least one of the complaining witnesses due to her belief she had an affair with her husband. Prosecutors will also argue that this was the driving force behind an attack that was ‘coordinated.’
• Harassment in the Second Degree. Finally, if a jury concludes that Cardi B merely subjected one of the complaining witnesses to physical contact, or attempted or threatened to do the same; or, she will be convicted of Harassment in the Second Degree, which is a violation and not a crime (and carries a maximum of 15 days in jail). A jury could conceivably convict for this charge if, for example, they believed Cardi B did subject one of the bartenders to physical contact but no physical injury resulted (or if they believed no dangerous instrument was used).

In the coming months, expect Cardi B’s attorney to file a number of motions to obtain discovery materials from the government, as well as file motions challenging the sufficiency of any and all evidence upon which the indictment charges were secured. A successful defense in a case like this usually involves painstaking defense investigation, thorough debriefing of any and all eyewitnesses and background witnesses, and careful review of surveillance and/or audio evidence depicting related events. Fights which occur in bars and strip clubs very often pose significant challenges for prosecutors as well, as they find themselves dealing with victims and eyewitnesses who are severely intoxicated and may even present materially conflicting testimony. Finally, when it comes to high-profile defendants such as Cardi B, the potential for pecuniary interest in the outcome of the case on the part of government witnesses becomes a real possibility, and thus poses a risk for bias which the defense can and will exploit.

Our firm is experienced in defending cases involving such assaults, and has done so with great success (including securing numerous dismissals subsequent to extensive defense investigation prior to trial). If you or anyone you know has been charged with any crime, you should contact the lawyers at the Law Office of Matthew Galluzzo without delay.

Mr. Baldwin was arrested in November after allegedly punching someone over a parking spot in Manhattan. Mr. Baldwin generally denied punching the other person though he admitted to pushing him. Baldwin was actually given a Desk Appearance Ticket and eventually charged with Attempted Assault in the Third Degree (Penal Law 110/120.00), a Class B misdemeanor, and Harassment in the Second Degree (Penal Law 240.26), a violation. Prosecutors reviewed video surveillance footage, spoke to witnesses, and considered the complainant’s medical records before ultimately making a plea bargain offer to Mr. Baldwin. Under the terms of that deal, which Mr. Baldwin accepted in January 2019, Mr. Baldwin pleaded guilty to Harassment in the Second Degree and will undergo a short anger management program.

By pleading guilty, Mr. Baldwin was convicted of Harassment in the Second Degree. However, this conviction is not a “crime” under New York state law, it is a violation and/or criminal offense. As such, in response to the question, “Have you ever been convicted of a crime,” Mr. Baldwin could answer “no”. Also, upon completing this short anger management course (typically completed within one day), Mr. Baldwin’s records will be sealed to the public after one year. The most important benefit to this deal, of course, is that Mr. Baldwin avoids the possibility of being convicted of the misdemeanor charge and receiving a possible (though unlikely in this case) sentence of jail.

The downside to this disposition for Mr. Baldwin is that he had to admit, under oath, that he had harassed the complainant. This makes it likely that the complainant will bring a civil suit against Mr. Baldwin, and Mr. Baldwin will have a difficult time defending himself against the underlying facts. To be sure, damages will still very much be at issue in a civil lawsuit, but Mr. Baldwin’s harassment of the complainant has already been settled by way of his guilty plea under oath. The attorneys at The Law Office of Matthew Galluzzo have also successfully defended several individuals accused of assault or sexual assault in civil court following the disposition of the related criminal cases.

All in all, however, it is a fairly standard disposition in a case in which the injuries appear to have been minimal. (Indeed, Mr. Baldwin was only charged with Attempted Assault instead of Assault because the complainant’s injuries did not rise to the necessary level of an assault charge.) We have also been able to secure outright dismissals for many of our clients, or negotiate “ACDs” (adjournments in contemplation of dismissal), which are superior to violation plea bargains in that the charges are totally dismissed after a six or twelve month period of time, and there is no admission of guilt whatsoever. When misdemeanor assault charges involve very serious injuries, then prosecutors sometimes insist upon the defendants being convicted of misdemeanor charges, which can result in jail time. Those cases in particular require especially skillful representation.

If you or a loved one have been arrested or given a Desk Appearance Ticket for an assault related charge, you should strongly consider contacting the experienced former prosecutors at the Law Office of Matthew Galluzzo.

So what constitutes substantial pain and what does not? The Court of Appeals has found sufficient evidence of substantial pain in the following instances:

• Where victim was struck with a baseball bat resulting in discoloration, swelling and lost sensation to arm;
• Where victim sustained a 1.5 inch laceration from a bullet which was redressed at the hospital and which was still oozing when treated;
• Where lacerations to eye and hand resulted in “permanent spots” on hand and “terrible pain” after having been tripped, sat on, kicked and cut with knife;
• Where victim lost consciousness, sustained contusions to neck, experienced pain, had difficulty swallowing and was prescribed medicine after being choked; and
• Where suffered pain and symptoms for three to five weeks from a concussion and laceration to head, bruises and sprains, and a bruised and swollen foot.

It is important to note that in each case where substantial pain was found to exist, the Court pointed to some objective evidence to support the finding.

Conversely, the Court of Appeals has ruled that the following allegations set forth were insufficient to establish substantial pain:

• Where incidental reference to a black eye without any development of its appearance, seriousness, accompanying swelling or suggestion of pain was made;
• Where victim cried, felt an unspecified degree of pain and sustained a red mark after being hit twice by defendant;
• Where victim suffered a one centimeter cut above her lip; and
• Where the victim experienced swelling and redness which persisted for a week, without a specified level of pain.

While the determination of the existence of “substantial pain” is generally one for a jury, the prosecution is not entitled to simply plead the existence of “substantial pain” in a conclusory manner in order to escape sufficiency scrutiny. In other words, the injury must stand up to some form of objective scrutiny. For this reason, it is important for the attorney of a defendant charged with assault to review the charging document for sufficiency, and prepare a detailed motion to dismiss or reduce the charges where appropriate. Most of the cases we handle involve allegations which fall somewhere in between the two categories described above. Since each case is different, it is up to us to craft a convincing argument as to why a particular case should fall in the second category as opposed to the first. The success of such a motion can greatly alter the trajectory of a criminal case, and not only reduce the top count maximum exposure by 9 months in jail (from a class “A” to a class “B” misdemeanor) but also convince a prosecutor to make a more favorable plea offer or even dismiss the criminal charges entirely.

If you have been accused of committing the crime of assault in any degree, it is imperative you consult with an experienced lawyer immediately. The stakes are high in these cases and prosecutors take them very seriously. They carry the potential for jail as well as a permanent criminal record if not properly defended. Attacking the sufficiency of the charges is one of several strategies our team of former prosecutors employs when fighting for our clients, so don’t hesitate to reach out to us if you find yourself accused of this crime.

Assault in the Third Degree lies in Penal Law 120.00, which states that a person can be guilty of that charge in the following three situations:

1. When, with intent to cause physical injury to another person, he or she causes such injury to such person or to a third person; or

2. He or she recklessly causes physical injury to another person; or

3. With criminal negligence, he or she causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

The vast majority of alleged assaults fall within the ambit of subsection (1), however subsection (2) is usually charged as an alternate theory to the same conduct for which subsection (1) applies. Thus, a person who punches another person causing some form of injury will usually be charged will violating PL 120.00(1) (for intentionally causing physical injury) and PL 120.00(2) (for recklessly causing physical injury). The common denominator for all three subsections of Assault 3 is “physical injury,” which is defined as “impairment of physical condition or substantial pain.

As defense attorneys, we are charged with the duty of attacking our cases from every viable angle. This may not only include a challenge to the allegation that our client was actually the person who did the assaulting, but also a challenge to the “sufficiency” of the allegation of injury. In other words, we argue that the injury alleged to have occurred does not even rise to the level of a misdemeanor, regardless of who caused it. A more specific challenge we might employ involves an assertion that the prosecutor’s allegations do not legally make out “substantial pain.” (Similar arguments are made up the chain as the threshold level of injury increases for Assault 2 and 1, respectively).

How is this done? When a defendant is formally charged with assault, he/she is arraigned on the charges and their attorney provided a copy of the charging instrument, usually referred to as the criminal court complaint. This complaint contains a brief summary of allegations which serves the purpose of putting the defense on notice of the nature of the case. For example, a complaint might state, in relevant part, that the defendant was observed “punching (the victim) several times about the head with a closed fist thereby causing (the victim) to sustain a bloody lip, a laceration below the eye and substantial pain.” A less severe complaint might state that the defendant was observed striking the victim numerous times “with his hand, causing redness to the (victim’s) face and substantial pain.”

Of critical importance is the fact that the Court of Appeals (New York’s highest Court) has held that a victim’s subjective description of an injury will not always be sufficient to support a finding of physical injury, and that injuries are to be looked at objectively as well. This rule exists to prevent a complaint stating the “victim” experienced substantial pain after being slapped with a feather from sufficiently stating a case for assault.

So which types of cases have been held to have sufficiently plead physical injury and which have not? We discuss that and more here in Part II.

18 U.S. C. § 2241 – aggravated sexual abuse18 U.S. C. § 2244 – abusive sexual contact

But also with specific charges:

49 U.S. C. § 46504 – Interference with flight crew members and attendants: “An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both. However, if a dangerous weapon is used in assaulting or intimidating the member or attendant, the individual shall be imprisoned for any term of years or for life.”49 U.S. C. § 46507 – False information and threats: “An individual shall be fined under title 18, imprisoned for not more than 5 years, or both, if the individual—

(1) knowing the information to be false, willfully and maliciously or with reckless disregard for the safety of human life, gives, or causes to be given, under circumstances in which the information reasonably may be believed, false information about an alleged attempt being made or to be made to do an act that would violate section 46502(a), 46504, 46505, or 46506 of this title; or(2)(A) threatens to violate section 46502(a), 46504, 46505, or 46506 of this title, or causes a threat to violate any of those sections to be made; and(B) has the apparent determination and will to carry out the threat.”

18 U.S. C. § 32 – Destruction of aircraft or aircraft facilities

However, Department of Justice figures show that just 11% of cases brought to the Federal Aviation Administration between 2001 and 2014 rose to the level of federal criminal prosecution. Moreover, even when there is a criminal prosecution, a plea agreement is often approved for the reduced misdemeanor charge of simple assault (18 U.S.C § 113). The airlines are sometimes reluctant to press criminal charges against the traveler because of fears that bad press could hurt the airline’s image, which can be surprising considering that many disruptive passengers can cost airlines big money, because it can cost between $10.000 and $200.000 to perform an unscheduled landing divert a flight or disembark an unruly passenger.[If you or a loved one is involved in an unruly passenger case, do not hesitate to reach out to The Law Office of Matthew Galluzzo; our team of former prosecutors and experienced criminal defense attorneys can help you with your case.]

In this challenging case for the defense, Arnone’s client had been falsely accused by multiple complaining witnesses of robbing them of their cell phones while brandishing weapons. These serious allegations were made even more difficult to overcome in light of an allegation that a cell phones belonging to one of the complaining witnesses was recovered from the client at the scene. The client was further accused of acting in concert with a co-defendant to strike one of the complaining witnesses in the head with a broken bottle, thereby causing serious injury. A number of people at the scene were treated by EMS and some were hospitalized.

After conducting an extensive investigation on his client’s behalf, Arnone was able to affirmatively disprove that the robbery ever took place, and demonstrated to prosecutors that any physical force undertaken by his clients was indeed justified under New York law. Thankfully, the defense investigation succeeded in turning up invaluable surveillance camera footage which contradicted the account of the alleged victims.

After five long months during which the serious felony charges were pending, Arnone was able to convince the Manhattan District Attorney’s Office to toss out all of the following counts against his client:

Two counts of Robbery in the First Degree, each carrying a maximum sentence of 25 years in prison;

Four counts of Assault in the Second Degree, each carrying a maximum sentence of 7 years in prison;

One count of Criminal Possession of a Weapon in the Fourth Degree, which carries a maximum of 1 year in jail;

One count of Criminal Possession of Stolen Property, which carries a maximum of 1 year in jail.

Recently, an unfortunate tragedy occurred in Queens resulting in a man’s death. A tourist from Florida named Sandor Szabo requested an Uber to take him from a family member’s wedding. In an apparently intoxicated effort to find his Uber, Mr. Szabo banged on several nearby cars with his fists. He eventually banged on the car belonging to Jamill Jones, an assistant coach for the Wake Forest University men’s basketball team. Mr. Jones got out of his car and punched Szabo one time in the face. Szabo fell to the ground and hit his head on the pavement. Jones drove away. Szabo was taken to the hospital and later died from the injury. See “Wake Forest coach could face murder charges,” NY Post, August 10, 2018.

Jones was identified and surrendered himself to police. As of yet, he has only been charged with a misdemeanor assault in violation of Penal Law Section 120.00 (Assault in the Third Degree, to be precise). That charge makes it a crime, punishable by up to one year in prison, to intentionally cause physical injury to another person. This is a typical charge for a single punch to the face. The fact that Mr. Szabo tragically died, however, makes the situation more complicated from a legal perspective. The New York Post article suggests that Mr. Jones could face murder charges, but that is perhaps imprecise or incorrect. Murder charges (such as the most common charge of Murder in the Second Degree, in violation of Penal Law Section 125.25) would require a showing that Jones not only killed Szabo, but that he intended to kill Szabo. That seems unlikely given that he only punched Szabo once.

There is precedent for these situations, as this is not the first time in New York that a person has been arrested for killing someone with a single punch; indeed, the author of this article has seen several such unfortunate cases in his days as a Manhattan prosecutor. Normally, one of two things happens: either the defendant is charged with a misdemeanor assault, as Jones has been here, or the defendant is charged with Manslaughter in the Second Degree, in violation of Penal Law Section 125.15. Manslaughter in the Second Degree is a Class C felony with a maximum possible sentence of 15 years, though probation and non-jail sentences are possible. See Penal Law Sections 60.01 and 65.00. Manslaughter in the Second Degree requires a showing that the defendant recklessly caused the death of another person. “A person acts recklessly with respect to a result or to a circumstance…. When he is aware of and consciously disregards a substantial and unjustifiable risk that such result will or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” Penal Law 15.05(3).

The question thus becomes: when he raised his fist to punch Szabo, did it occur to Jones that he might kill Szabo with a single punch? Most people probably don’t think that one punch will kill, and that is the dilemma facing prosecutors in these cases. Certainly, the prosecutors will feel pressure from the victim’s family and the community to prosecute Jones to the fullest extent of the law. However, it will likely be extremely difficult to secure a felony conviction in this case. Mr. Jones could still receive a sentence of one year in prison for the assault, not to mention the misdemeanor crime of Leaving the Scene of an Accident (VTL Section 600) that he will surely face, as well. But, we expect that he will not even be charged with manslaughter under the circumstances.

If you or a loved one have been arrested or investigated for an accidental homicide, you should strongly consider contacting the experienced criminal defense attorneys at the Law Office of Matthew Galluzzo. Their team of former Manhattan prosecutors have both prosecuted and defended homicide cases, and can bring their balanced understanding to your defense team.

Federal assault charges can apply to any person who causes an offensive physical touching to another person on the airplane. Certainly, that can apply to physical violence, but it might also apply to unwanted sexual touching of another person as well. Assaulting another person on an airplane is normally a petty offense under federal criminal law, pursuant to 18 U.S.C. § 113(a)(5). (Those accused of sexually assaulting others on airplanes can also be prosecuted with the more serious felony charge of 18 U.S.C. § 2244(b), however, and attempts to maim or murder can be prosecuted as felonies, as well). That means that the crime is a misdemeanor with a maximum prison penalty of six months and/or a fine of $5000.00. Also, it means that the defendant is not entitled to a jury trial. Instead, the defendant must have his case tried by a federal magistrate judge.

Locating and interviewing witnesses in these cases is of paramount importance to the defense. Occasionally, shaky cell phone video footage might be available of the incident or dispute, and it may actually vindicate the accused person. Sometimes defendants have even acted unknowingly or unintentionally, by virtue of intoxicated or sleep disorders, and such defense should be explored and developed if applicable.

If you or a loved one have been arrested or accused of committing that crime in the New York or New Jersey area (JFK, LaGuardia, or Newark airports, for example), you should strongly consider retaining the services of the experienced criminal defense attorneys at the Law Office of Matthew Galluzzo. Matthew Galluzzo, in particular, has successfully earned trial acquittals and non-jail sentences in cases involving federal charges or assaults on airplanes.

As in the case of any non-citizen, the stakes are higher for O-1, O-2 and O-3 visa holders who are arrested because they face the risk of visa revocation on top of any sentence which is authorized for the crime they’ve been arrested for. For this reason, our lawyers are extraordinarily diligent in their representation of visa holders (as well as non-citizens in general), where a great deal of effort must be placed on crafting dispositions with an eye towards preserving our clients’ immigration status. In addition to being accomplished trial litigators, our attorneys are also top-notch negotiators who have secured many dismissals and non-criminal dispositions for our clients. Specifically, the attorneys at The Law Office of Matthew Galluzzo have represented countless visa-holders with an impeccable record of success. For all of these reasons, it is imperative for any non-citizen who has been arrested (even given a Desk Appearance Ticket) to contact us as early in the process as possible. Even those charged with seemingly “minor” misdemeanors need to be diligent, for example, those charged with: Theft of Services (PL 165.15), Petit Larceny (PL 155.25), Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Mischief (PL 145.00), Unlawful Possession of Marijuana (PL 221.10), Assault in the Third Degree (PL 120.00), and Criminal Possession of a Weapon in the Fourth Degree (PL 265.01).

Keep in mind, U.S. visa posts routinely perform criminal background checks on visa applicants, which can lead to devastating consequences for those who don’t navigate the system properly, including, but not limited to, initiation of removal proceedings. For a myriad of reasons, it is critical for any O-1, O-2 or O-3 visa holder to contact an experienced attorney who understands the delicate nuances and immigration consequences posed in each of these cases. To be sure, the lawyers at The Law Office of Matthew Galluzzo have successfully represented O-1 visa holder with great success. If you or a loved are faced with a criminal prosecution, contact our attorneys without delay.

In many ways, a Desk Appearance Ticket does not feel like such a big deal. The arrested person is usually handcuffed and taken to a police station where they are fingerprinted. They typically wait a few hours in a holding cell until they are given a piece of paper telling them the date and location of their appearance in court. Before Desk Appearance Tickets became routine, criminal defendants could expect to get “sent downtown” and spend the night in jail before seeing a judge. Obviously, Desk Appearance Tickets are preferable for criminal defendants because they spend less time in custody and also have the opportunity to choose counsel for themselves prior to going to court.

Make no mistake, however: the issuance of a Desk Appearance Ticket is in fact an arrest – it is not “just a ticket”. More importantly for visa holders, this event is not going to “fly under the radar” with the immigration agencies. If you were arrested and given a Desk Appearance Ticket, your fingerprints and the arrest charges have been sent to a New York state agency (the Division of Criminal Justice Services) and to the FBI, which maintains a federal nationwide law enforcement database of all arrest events across the United States (the Interstate Identification Index). Visa and green card holders should understand that the immigration agencies, in processing visa renewal requests, access this database to investigate whether the visa applicant has an arrest record. Indeed, some visa holders actually receive emails from Department of Homeland Security (Immigration & Customs Enforcement) agents after their arrests, because the agency was notified of the arrest via the fingerprint database.

Generally speaking, visas will not be renewed if a visa holder has a pending (meaning unresolved) criminal case. Our office has worked with many people whose visas to work or attend school in the U.S. were denied on account of having a pending criminal case, either forcing them to return to their native country or preventing them from returning to the United States. Of course, certain types of convictions can also prevent the renewal of a visa, and can even result in removal or deportation for green card holders. The rules pertaining to the effects of various convictions are too complicated to full explain here – you should consult with an experienced attorney on the subject.

If you received a Desk Appearance Ticket, it should tell you what you can expect to be charged with when you go to court. Specifically, it will list a “Penal Law” charge with the phrase “PL” followed by a number next to the term “Top Offense Charge” or “Top Count”. The most common types of Desk Appearance Tickets include charges of Petit Larceny (or shoplifting, PL 155.25), Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Theft of Services (PL 165.15), Criminal Possession of a Weapon (PL 265.01), Assault in the Third Degree (PL 120.00), Trespass (PL 140.10), Public Lewdness (PL 245.00), Forgery (PL 170.20), Unlawful Possession of Marijuana (PL 221.10), and Sexual Abuse in the Third Degree (PL 130.53). These charges are all misdemeanors punishable by up to 90 days or 1 year in jail.

Most individuals (without prior arrests) charged with these crimes do not incur criminal convictions. However, many of the “best” dispositions for these cases – called Adjournments in Contemplation of Dismissals (or “ACDs”) – involve long “probationary” periods of six months or a year, during which time the defendants agree to remain arrest free and complete community service or counseling in exchange for a dismissal of the charges. Dismissals are generally great for defendants, so it is hard to refuse such an offer from the prosecutor and court, normally. Unfortunately for visa holders, these “probationary periods” sometimes overlap with the deadlines for renewals of their visas, and since the criminal charges are technically still pending during these probationary periods, visas can and will be denied during these periods. There are a number of possible solutions to this problem. Oftentimes, we seek to have court dates advanced for our clients to avoid deadline problems, meaning that the cases are brought to court sooner than originally scheduled. Sometimes we are able to convince prosecutors to dismiss charges outright. Other times, we simply petition prosecutors to shorten the “probationary periods” on the ACDs to give our clients the opportunity to apply for their visas without this impediment for renewal.

Criminal defendants holding visas and facing Desk Appearance Tickets should also consult with an attorney prior to traveling abroad. New executive orders signed by the President have complicated foreign travel for such individuals. Indeed, foreign visa holders could risk being denied re-entry into the United States by traveling while a criminal case is pending.

Our attorneys regularly represent foreign citizens charged with Desk Appearance Tickets. In fact, on account of our close relationships with several foreign consulates in New York City, over half of our criminal defense clients are citizens of foreign nations. As a result, we understand the unique challenges that holders of green cards of visas face after receiving a Desk Appearance Ticket, and we understand how to best help our clients avoid serious consequences for their visas or immigration status. We have helped countless individuals with F1, K1, H1B, J1, O1, E3, H2B, B1, and other visas remain in the United States so that they could pursue their careers and educational opportunities, and we are proud to have been able to do so.

If you or a loved one are a foreign citizen and have received a Desk Appearance Ticket, you should seriously consider the experienced criminal defense attorneys at the Law Office of Matthew Galluzzo. Their team of former Manhattan prosecutors will help you navigate the confusing criminal-immigration system and work with your immigration attorneys to do everything possible to ensure that your application for a renewal of your visa or green card is unaffected by these criminal charges.

Unfortunately, even a minor arrest can derail an application or renewal for an H1B visa. The attorneys at The Law Office of Matthew Galluzzo have represented many individuals with H1B visas who have received Desk Appearance Tickets for misdemeanor arrests, including, among other things: Theft of Services (PL 165.15), Petit Larceny (PL 155.25), Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Mischief (PL 145.00), Unlawful Possession of Marijuana (PL 221.10), and Assault in the Third Degree (PL 120.00). Some of these cases are oftentimes resolved with adjournments in contemplation of dismissal (“ACDs”) that would generally be considered to be favorable dispositions. However, ACDs typically involve six month waiting periods before the cases are dismissed, and any people who need to apply for or renew their H1B visas during that six month period are precluded from doing so (and thus unable to remain in the United States at their chosen and hard-earned job). Put plainly, an H1B visa will not be renewed if a criminal case is pending or if the ACD waiting period is still outsanding. This effect has also been noted in the context of other visa applications, such as F1 and J1 visas.

While these are generally not considered the most serious of cases, for visa holders, even these comparatively minor criminal cases can impact your life, career and renewal applications in a number of other ways. For example, convictions for these crimes can result in job loss, permanent criminal records, deportation or inadmissibility, fines, and potentially even jail time. A criminal case should never be taken lightly, but foreign citizens with visas need to be even more mindful of the consequences of an arrest.

The attorneys at The Law Office of Matthew Galluzzo – the accredited criminal defense attorneys for the New York Consulates of France, Switzerland, Belgium, Australia and Saudi Arabia – regularly represent foreign citizens in a wide variety of criminal cases, and have been successful in securing countless dismissals for our foreign clients. Moreover, we have been successful on numerous occasions in convincing prosecutors to dismiss low-level cases or shorten the statutory ACD waiting periods by demonstrating the adverse impact upon their H1B visa renewals or applications. If any of this might apply to you, you should consider retaining the services of one of the experienced criminal defense attorneys at the Law Office of Matthew Galluzzo.

Additionally, the attorneys at The Law Office of Matthew Galluzzo are fluent in French and Spanish. Our clients with those backgrounds greatly appreciate their ability to communicate in their native languages and find it easier to understand the process. To learn more about New York criminal law issues in French, visit our website www.droitpenal.nyc or email avocat@droitpenal.nyc.

A link to a news report about the case is available below. If you or your a loved one is facing homicide-related charges, you should seriously consider retaining the services of The Law Office of Matthew Galluzzo.