Articles Tagged with assault in the second degree

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Today, New York-area.news outlets reported that an Instagram model with about 34,000 followers, Genie Exum, had been arrested and was awaiting arraignment in Manhattan on felony charges. Allegedly, she stabbed her boyfriend (ex-boyfriend) numerous times during an argument. The author of this post, Matthew Galluzzo, is a former supervising attorney in the domestic violence unit at the Manhattan District Attorney’s Office, and has defended dozens of people charged with felony domestic violence. This is his analysis of what might happen to Ms. Exum and her case, and why.

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.

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Recently, in response to the horrific killing of George Floyd at the hands of Minneapolis police officers, there have been protests in major cities across the United States. An upstate woman and two New York attorneys were arrested and charged in federal court with crimes relating to their alleged throwing of Molotov cocktails at police vehicles during the protests in Brooklyn. However, most protestors arrested in New York City are charged with Desk Appearance Tickets in state court, and are typically charged with some combination of the following crimes: Obstructing Governmental Administration in the Second Degree (Penal Law 195.05, a Class A misdemeanor), Assault in the Second Degree (Penal Law 120.05, felony assault on a police officer, a class D felony), Reckless Endangerment in the Second Degree (Penal Law 120.20, a Class A misdemeanor), Resisting Arrest (Penal Law 205.30, a class A misdemeanor), or Disorderly Conduct (Penal Law 240.20, a violation). (Note: the charge(s) listed on the Desk Appearance Ticket are not necessarily the same as the charges that will appear in court on the actual criminal complaint – in fact, the number of charges usually increases from the Desk Appearance Ticket to the actual court complaint).

Oftentimes, in these cases in which no one was injured, a protester-defendant could – with the help of an experienced attorney – successfully negotiate a plea bargain whereby the protester will have no criminal record and spend no time in jail (such as an “adjournment in contemplation of dismissal or a violation like Disorderly Conduct). In cases involving Desk Appearance Tickets, such negotiations may even be possible prior to the return date (i.e. the first court appearance). However, for reasons relating to principle, many protester-defendants refuse to accept any such deal, preferring to demand dismissal or a trial where their voices can be heard by a jury. Such an attitude is certainly understandable but it does tend to increase the risk of a negative result (such as a permanent criminal record).

Unfortunately, some protests escalate into confrontations with police officers. In those cases, charges like Assault in the Second Degree can sometimes be levied against arrested protesters alleged to have injured police officers. That charge is a serious felony that can carry real jail time, and should not be treated lightly at all. The best defense in these cases is often to argue that the defendant did not act unreasonably, and that any injuries to the police officer were sustained on account of his/her own aggressive or improper actions. In today’s current climate, that argument can have real traction with some jurors.

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