Aggravated Assault Lawyer

Buffalo Aggravated Assault Lawyer

As a Buffalo aggravated assault lawyer, Thomas Trbovich defends people charged with felony assault in Erie County and across Western New York, including assault in the second degree, assault in the first degree, and aggravated assault upon a police officer. Depending on the degree, a conviction can mean years in state prison and a violent felony record.

Trbovich Law Firm handles felony assault cases as part of its Buffalo criminal defense practice, from the first appearance in Buffalo City Court or a town court through grand jury, Erie County Court, and trial. Partner Suzanne Garvey served as a prosecutor with the Erie County District Attorney's Office from 1990 until March 2023, including years in the Vehicular Crimes Bureau handling serious injury cases. That background gives our Buffalo aggravated assault lawyers a clear view of how prosecutors charge, prove, and negotiate injury cases.

What Is the Difference Between Assault and Aggravated Assault in New York?

In New York, simple assault is usually assault in the third degree, a class A misdemeanor under Penal Law 120.00. "Aggravated assault" is the common name for felony assault: assault in the second or first degree, or aggravated assault upon a police officer. A serious injury, a weapon or dangerous instrument, or a protected victim makes the charge a felony.

Most states use "aggravated assault" as a catch-all term. New York's Penal Law instead grades assault by degree, and only two sections use the word "aggravated." Knowing which section appears on the felony complaint is the first step in assessing the case. The main assault charges under Penal Law Article 120 are:

• Assault in the third degree (Penal Law 120.00): class A misdemeanor, usually intentionally or recklessly causing physical injury. See the misdemeanor assault defense page.
• Assault in the second degree (Penal Law 120.05): class D violent felony.
• Assault in the first degree (Penal Law 120.10): class B violent felony.
• Aggravated assault upon a police officer or peace officer (Penal Law 120.11): class B violent felony.
• Aggravated assault upon a person less than eleven years old (Penal Law 120.12): class E felony.
• Gang assault in the second and first degree (Penal Law 120.06 and 120.07): felony assault committed with two or more people actually present.
• Vehicular assault (Penal Law 120.03 and 120.04): serious injury caused while driving impaired, often charged alongside a Buffalo DWI.

The Buffalo assault charge lawyer page gives an overview of every degree. This page focuses on the felony charges.

Is Aggravated Assault a Felony in New York, and What Is the Sentence?

Yes. Felony assault in New York is a violent felony with a determinate state prison range for a first-time felony offender. Under Penal Law 70.02, assault in the second degree carries 2 to 7 years, assault in the first degree carries 5 to 25 years, and aggravated assault upon a police officer carries 10 to 30 years.

A determinate sentence is a fixed term, not a minimum and maximum range like older indeterminate sentences. Every determinate prison term for a violent felony is followed by post-release supervision under Penal Law 70.45, which works much like parole. The ranges for a person with no prior felony conviction are:

• Class D violent felony (assault in the second degree): 2 to 7 years, plus 1.5 to 3 years of post-release supervision
• Class B violent felony (assault in the first degree): 5 to 25 years, plus 2.5 to 5 years of post-release supervision
• Aggravated assault upon a police or peace officer: 10 to 30 years under Penal Law 70.02(3)(a)
• Class E felony (aggravated assault upon a person less than eleven years old): sentenced under the class E felony rules

A prior felony conviction within the statutory look-back raises these ranges sharply under Penal Law 70.04 (second violent felony offender) and 70.06 (second felony offender). A first conviction for a violent felony also becomes a predicate for any future felony.

Will You Go to Prison for Assault in the Second Degree?

Not necessarily, but probation alone is not a legal sentence for assault in the second degree. Penal Law 60.05(5) requires imprisonment or intermittent imprisonment. For a first-time felony offender, a judge can impose a local jail term of up to one year under Penal Law 70.00(4) instead of state prison, or a split sentence of jail and probation.

The court can use the alternative definite sentence under Penal Law 70.00(4) only if it finds that a state prison term would be unduly harsh, based on the nature of the offense and the person's history and character. A split sentence under Penal Law 60.01(2)(d) combines a short jail term with probation. These options are not available to second felony offenders.

Because the sentencing rules are this strict, the most important work in many felony assault cases happens before sentencing. That work includes challenging the degree of injury, the weapon allegation, and the intent element, and pursuing a reduction where the evidence supports one.

What Counts as Assault in the Second Degree Under Penal Law 120.05?

Assault in the second degree covers several situations. The most common are intentionally causing serious physical injury, intentionally causing physical injury with a deadly weapon or dangerous instrument, recklessly causing serious physical injury with a weapon, and injuring a police officer, firefighter, nurse, or other protected worker to prevent that person from doing their job.

Penal Law 120.05 has more than twenty subdivisions, and the subdivision charged determines what the prosecution must prove. The ones most often charged in Buffalo and Erie County include:

• 120.05(1): intent to cause serious physical injury, and causing serious physical injury
• 120.05(2): intent to cause physical injury, and causing it with a deadly weapon or dangerous instrument
• 120.05(3): intent to prevent a police officer, peace officer, firefighter, emergency medical worker, nurse, or other listed worker from performing a lawful duty, and causing physical injury
• 120.05(4): recklessly causing serious physical injury with a deadly weapon or dangerous instrument
• 120.05(6): causing physical injury to a non-participant during a felony or immediate flight from it
• 120.05(7): intentionally injuring someone while confined in a correctional facility
• 120.05(9): a person 18 or older intentionally injuring a child under 7
• 120.05(10): intentionally injuring a school employee, or a non-student injuring a student, on school grounds
• 120.05(11): intentionally injuring a listed transit, traffic, sanitation, health, or emergency worker while on duty
• 120.05(12): intentionally injuring a person 65 or older when the accused is more than ten years younger

Several of these subdivisions require only "physical injury," not serious physical injury. In those cases, the felony comes from who the alleged victim is or how the injury happened, which makes the facts about the person's job, age, or location central to the defense.

What Is Assault in the First Degree Under Penal Law 120.10?

Assault in the first degree is a class B violent felony, one of the most serious non-homicide charges in New York. It requires serious physical injury plus an aggravating factor: intent combined with a deadly weapon or dangerous instrument, intent to permanently disfigure, depraved indifference to human life, or injury to a non-participant during a felony.

• 120.10(1): intent to cause serious physical injury, and causing it with a deadly weapon or dangerous instrument
• 120.10(2): intent to permanently disfigure or to destroy, amputate, or disable a body part or organ, and causing that harm
• 120.10(3): recklessly engaging in conduct that creates a grave risk of death, under circumstances showing depraved indifference to human life, and causing serious physical injury
• 120.10(4): causing serious physical injury to a non-participant during a felony or immediate flight from it

First-degree assault cases often turn on medical evidence. Whether an injury meets the legal definition of serious physical injury, and whether the defendant's mental state matches the subdivision charged, are questions our Erie County felony assault attorneys examine closely with medical records and, when needed, retained physicians.

What Is Aggravated Assault Upon a Police Officer or a Child Under 11?

Aggravated assault upon a police officer or peace officer, under Penal Law 120.11, is intentionally causing serious physical injury with a deadly weapon or dangerous instrument to someone the accused knew or reasonably should have known was an officer on duty. It is a class B violent felony carrying 10 to 30 years.

Most cases involving injury to an officer are charged instead under assault in the second degree, Penal Law 120.05(3), which requires only physical injury and an intent to prevent the officer from performing a lawful duty. The difference between the two charges is the difference between a class D and a class B felony, so the degree of injury and the alleged weapon are critical.

Aggravated assault upon a person less than eleven years old, under Penal Law 120.12, applies when a person 18 or older commits assault in the third degree against a child under 11 and has a prior conviction for that same offense against a young child within the previous ten years. It is a class E felony.

What Do Physical Injury, Serious Physical Injury, and Dangerous Instrument Mean?

Under Penal Law 10.00, "physical injury" means impairment of physical condition or substantial pain. "Serious physical injury" means injury creating a substantial risk of death, or causing death, serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of a bodily organ. That gap often decides whether a charge is a misdemeanor or a felony.

• Physical injury (Penal Law 10.00(9)): impairment of physical condition or substantial pain. Minor bruising or brief pain may not qualify.
• Serious physical injury (Penal Law 10.00(10)): the higher standard described above. A broken bone, for example, does not automatically qualify.
• Deadly weapon (Penal Law 10.00(12)): a loaded firearm or a listed weapon such as a switchblade, dagger, or billy club.
• Dangerous instrument (Penal Law 10.00(13)): any object that, as used or threatened to be used, is readily capable of causing death or serious physical injury. A shoe, bottle, car, or bare floor can be charged as a dangerous instrument depending on how it was used.

Prosecutors often charge the highest degree the arrest report supports and let the medical records sort it out later. Requesting those records early, and comparing them to the legal definitions, is part of how our Buffalo aggravated assault lawyers test whether a felony charge is supported at all.

What Defenses Apply to a Felony Assault Charge in Buffalo?

The defenses to a felony assault charge in Buffalo depend on the subdivision charged and the evidence. Common defenses include justification (self-defense or defense of others), lack of the required intent, an injury that does not meet the legal definition, an object that was not a dangerous instrument, misidentification, and suppression of unlawfully obtained evidence.

• Justification under Penal Law 35.15: a person may use physical force to defend against what they reasonably believe is the imminent use of unlawful force. Once the defense raises justification, the prosecution must disprove it beyond a reasonable doubt.
• Intent: most felony assault subdivisions require a specific intent. Evidence that an injury was accidental, or that the intent was to cause a lesser injury, can defeat the charged degree.
• Injury level: medical records may show the injury does not meet the definition of serious physical injury or even physical injury.
• Weapon or dangerous instrument: whether an object was actually used, and whether its use made it readily capable of causing serious injury, is a question of fact.
• Identification: crowded bar fights, parking lot incidents, and late-night disputes often produce unreliable identifications, which can be challenged at a Wade hearing under CPL Article 710.
• Intoxication under Penal Law 15.25: evidence of intoxication may be offered to show that the accused did not form the required intent.
• Suppression: statements taken in violation of Miranda and evidence from unlawful searches can be challenged under CPL Article 710.

Can an Aggravated Assault Charge Be Reduced in Erie County?

A felony assault charge can be reduced, either through grand jury action, a pretrial motion, or plea negotiation, but reductions depend on the evidence and the prosecutor's position. Common reduced charges include attempted assault in the second degree, a class E felony, and assault in the third degree, a class A misdemeanor.

A felony complaint is only the arresting agency's charge. Before a felony case can go to trial in Erie County Court, a grand jury must vote an indictment under CPL Article 190, and the grand jury can vote a lower charge than the complaint. After indictment, the defense can move to dismiss or reduce counts that the grand jury evidence did not support, under CPL 210.20 and 210.30.

Plea negotiation is the other path. The law limits some pleas in violent felony cases, so the realistic options depend on the indictment, the injury evidence, and any prior record. A reduction to a misdemeanor changes the sentencing rules entirely, since probation and conditional discharge become available again. The posts on what happens after an indictment and whether charges can be dropped after an indictment explain the felony process in more detail.

What Happens After a Felony Assault Arrest in Buffalo?

After a felony assault arrest in Buffalo, the case starts with an arraignment on a felony complaint in Buffalo City Court or the local town or village court. The judge addresses release, issues a temporary order of protection in most cases, and sets a date. The case then moves toward a grand jury and, if indicted, to Erie County Court.

• Release and bail: most violent felonies are qualifying offenses under CPL 510.10, so a judge may set bail rather than release on recognizance.
• Order of protection: a temporary order of protection under CPL 530.13 usually bars contact with the alleged victim. Violating it can lead to a separate criminal contempt charge.
• Felony hearing or grand jury: under CPL 180.80, a person held in custody must generally be released if there is no preliminary hearing or grand jury action within 120 hours, or 144 hours over a weekend or holiday.
• Grand jury testimony: under CPL 190.50, the accused has the right to testify before the grand jury after serving written notice. Whether to testify is a strategic decision that should be made with counsel.
• Discovery: under CPL Article 245, the prosecution must turn over police reports, body camera footage, 911 calls, medical records it holds, and witness information within set deadlines.

When the alleged victim is a family or household member, the case may also involve family offense issues covered on the domestic violence defense lawyer page.

What Other Consequences Follow a Felony Assault Conviction?

Beyond prison and post-release supervision, a felony assault conviction creates a violent felony record that raises the sentence for any future felony, can bar firearm ownership, and can affect employment, professional licenses, housing, and immigration status. A final order of protection lasting years is also common after a conviction.

• Predicate felony status: a violent felony conviction counts toward second violent felony offender sentencing under Penal Law 70.04.
• Firearms: a felony conviction disqualifies a person from possessing firearms under state and federal law.
• Orders of protection: a final order of protection after a felony conviction can last for years under CPL 530.12 and 530.13.
• Record sealing: under the Clean Slate Act, CPL 160.57, eligible felony convictions are sealed only after eight years from sentencing or release from incarceration.
• Restitution: courts can order payment of the alleged victim's medical costs and other losses under Penal Law 60.27.

How Do Our Buffalo Aggravated Assault Lawyers Handle These Cases?

Our Buffalo aggravated assault lawyers prepare every felony assault case as if it is going to trial, starting with the injury evidence, the alleged weapon, and the witness accounts. That preparation is what supports a strong position at a hearing, before a grand jury, at the negotiating table, and in front of a jury.

• Arrest and arraignment: release arguments under CPL 510.10, review of the temporary order of protection, and protection of the CPL 180.80 deadline.
• Grand jury: advising on whether to testify under CPL 190.50 and presenting information that may support a lower charge.
• Discovery and investigation: review of body camera footage, surveillance video, 911 calls, and medical records under CPL Article 245, with private investigators and retained physicians when the injury evidence is disputed.
• Motions and hearings: motions to dismiss or reduce under CPL 210.20 and 210.30, and suppression hearings under CPL Article 710 on statements, searches, and identifications.
• Plea negotiation: a plea on the right terms is welcome. A plea that gives away a real justification or intent defense is not.
• Trial and sentencing: jury trial in Erie County Court, and, if there is a conviction, arguments for the alternative sentences the law allows.

Why Choose Thomas Trbovich for Your Aggravated Assault Case?

Thomas Trbovich has been admitted to practice in New York since 1997 and graduated cum laude from SUNY Buffalo School of Law. His practice covers criminal, felony, misdemeanor, and DWI cases in Western New York, and he works with partner Suzanne Garvey, who prosecuted cases in Erie County for more than three decades.

• Thomas Trbovich: J.D., cum laude, SUNY Buffalo School of Law, 1997; admitted in New York, 1997
• Thomas Trbovich: M.S. in Economics, SUNY Buffalo, 1990; B.S., Skidmore College, 1988
• Suzanne Garvey: J.D., magna cum laude, SUNY Buffalo School of Law, 1989; B.S.S., summa cum laude, SUNY Buffalo, 1986
• Suzanne Garvey: prosecutor with the Erie County District Attorney's Office from 1990 until March 2023, with most of her final seven years in the Vehicular Crimes Bureau, which handled serious injury and fatal crash cases countywide

Contact Our Buffalo Aggravated Assault Lawyers

If you or a family member has been charged with assault in the second degree, assault in the first degree, or aggravated assault in Buffalo or anywhere in Western New York, talk with our Buffalo aggravated assault lawyers before the grand jury stage. Bring the felony complaint, the securing order, any order of protection, and the names of anyone who saw what happened to the first meeting with Trbovich Law Firm.