Buffalo Assault Lawyer

As a Buffalo assault lawyer, Thomas Trbovich defends people charged with every degree of assault in Erie County and Western New York, from misdemeanor assault in the third degree to felony assault in the first degree. An assault charge can bring jail or prison, an order of protection, and a criminal record, depending on the injury, the intent, and the circumstances.

Trbovich Law Firm handles assault cases as part of its Buffalo criminal defense practice, from the first appearance in Buffalo City Court or a town court through 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 experience gives our Buffalo assault lawyers a working knowledge of how injury cases are charged, proven, and negotiated.

Is Assault a Felony or a Misdemeanor in New York?

Assault in New York can be either. Assault in the third degree is a class A misdemeanor carrying up to 364 days in jail. Assault in the second degree, assault in the first degree, and aggravated assault are violent felonies carrying state prison terms. The degree depends on the injury, the intent, any weapon, and who the alleged victim is.

New York does not use a single "assault and battery" charge. Instead, Penal Law Article 120 grades assault by degree, and the charge on the paperwork tells you the maximum exposure. The main assault charges are:

• Assault in the third degree (Penal Law 120.00): class A misdemeanor, up to 364 days in jail
• Attempted assault in the third degree: class B misdemeanor, up to 3 months in jail
• Assault in the second degree (Penal Law 120.05): class D violent felony, 2 to 7 years in state prison for a first-time felony offender
• Assault in the first degree (Penal Law 120.10): class B violent felony, 5 to 25 years
• Aggravated assault upon a police officer or peace officer (Penal Law 120.11): class B violent felony, 10 to 30 years
• Vehicular assault (Penal Law 120.03 and 120.04): felony charges for serious injury caused while driving impaired, often charged with a Buffalo DWI

The felony charges, their subdivisions, and their sentencing rules are covered in detail on the Buffalo aggravated assault lawyer page.

What Is Simple Assault in New York?

"Simple assault" is the common name for assault in the third degree under Penal Law 120.00. It covers intentionally causing physical injury, recklessly causing physical injury, or causing physical injury with a deadly weapon or dangerous instrument through criminal negligence. It is a class A misdemeanor, the most common assault charge in Buffalo courts.

• 120.00(1): intent to cause physical injury, and causing that injury to the person or a third person
• 120.00(2): recklessly causing physical injury
• 120.00(3): causing physical injury with a deadly weapon or dangerous instrument through criminal negligence

The possible sentences for assault in the third degree range from a conditional discharge or a fine of up to $1,000 under Penal Law 80.05, to probation, to a definite jail term of up to 364 days under Penal Law 70.15. A judge can also issue a final order of protection. The Buffalo simple assault lawyer page explains the misdemeanor charge, its sentencing options, and its defenses in depth.

Can Assault Charges Be Dropped If the Victim Does Not Want to Press Charges?

In New York, the alleged victim does not control an assault case. The District Attorney prosecutes the charge on behalf of the People, and only the prosecutor or the court can dismiss it. A complaining witness who stops cooperating can still affect the case, because the prosecution must be able to prove each element at trial.

Many people are surprised to learn that a signed statement asking to "drop the charges" does not end the case. At the same time, a misdemeanor assault case built on a police officer's account usually has to be supported by a non-hearsay statement from someone with direct knowledge before the case can go to trial. That document, often a supporting deposition, converts the complaint into an information under CPL 100.40 and 170.65.

Practical points for anyone in this situation:

• A temporary order of protection stays in effect until a judge changes or vacates it, even if the protected person wants contact.
• Contact that violates the order can lead to a new charge of criminal contempt under Penal Law 215.50 or 215.51.
• Prosecutors may use other evidence, such as 911 recordings, photographs, body camera footage, and medical records.
• Requests to modify an order of protection go through the court, ideally through counsel.

What Is the Difference Between Assault, Harassment, and Menacing?

The difference is injury and fear. Assault requires an actual physical injury. Harassment in the second degree covers striking, shoving, or kicking someone, or attempting or threatening to, without needing an injury, and it is a violation rather than a crime. Menacing covers placing someone in fear of physical injury, usually through a threat or a weapon.

• Harassment in the second degree (Penal Law 240.26): a violation, up to 15 days in jail, and not a crime under New York law
• Aggravated harassment in the second degree (Penal Law 240.30): class A misdemeanor, covering certain threatening communications and physical contact motivated by bias
• Menacing in the third degree (Penal Law 120.15): class B misdemeanor, intentionally placing someone in fear of physical injury
• Menacing in the second degree (Penal Law 120.14): class A misdemeanor, including displaying a weapon or something that appears to be a firearm, a repeated course of conduct, or menacing while violating a stay-away order
• Assault in the third degree (Penal Law 120.00): class A misdemeanor requiring physical injury

These distinctions matter in negotiation. A reduction from assault in the third degree to harassment in the second degree changes a criminal charge into a violation, which is not a crime and is sealed under CPL 160.55. Whether that kind of resolution is possible depends on the evidence and the prosecutor's position. Related disorderly conduct charges are covered on the disorderly conduct lawyer page.

What Does Physical Injury Mean in a New York Assault Case?

Under Penal Law 10.00(9), physical injury means impairment of physical condition or substantial pain. Minor scrapes, fleeting pain, or redness may not meet that standard. Serious physical injury under Penal Law 10.00(10) is a much higher bar involving a substantial risk of death, protracted disfigurement, or protracted impairment of health or of a bodily organ.

The injury evidence often decides whether a case is a violation, a misdemeanor, or a felony. New York courts look at factors such as the type of injury, whether medical treatment was sought, and how the person described the pain. Photographs taken at the scene, emergency room records, and the timing of any treatment are often the most important evidence in the file.

Our Erie County assault defense attorneys request medical records early and compare them to the legal definitions, using retained physicians when the injury evidence is disputed.

What Happens After an Assault Arrest in Buffalo?

After an assault arrest in Buffalo, the case begins with an arraignment in Buffalo City Court or the town or village court where the incident happened. Some people receive a desk appearance ticket with a later court date. At arraignment, the judge addresses release conditions and, in most assault cases, issues a temporary order of protection.

• Appearance ticket or custody: many misdemeanor assault arrests result in an appearance ticket under CPL Article 150. The guide on desk appearance tickets in Buffalo explains that process.
• Release: most misdemeanor assault charges are not qualifying offenses for bail under CPL 510.10, so release is generally required, though the judge can set non-monetary conditions. Felony assault and some domestic violence charges can be qualifying offenses.
• Order of protection: a temporary order under CPL 530.12 (family or household members) or CPL 530.13 (others) can bar contact and require you to stay away from a home, workplace, or school.
• Discovery: under CPL Article 245, the prosecution must share police reports, body camera footage, 911 recordings, photographs, and witness information within set deadlines.
• Speedy trial: under CPL 30.30, the prosecution must be ready for trial within 90 days on a class A misdemeanor, not counting excludable time.

What Defenses Apply to an Assault Charge in Buffalo?

The defenses to an assault charge in Buffalo depend on the degree and the evidence. Common defenses include justification (self-defense or defense of another person), no qualifying physical injury, lack of the required intent or recklessness, misidentification, false or exaggerated accusations, a defective accusatory instrument, and suppression of statements or evidence.

• Justification under Penal Law 35.15: New York's self-defense law allows physical force when a person reasonably believes it is necessary to defend against the imminent use of unlawful physical force. Once justification is raised, the prosecution must disprove it beyond a reasonable doubt. Deadly physical force carries a duty to retreat when it can be done with complete safety, except in your own home when you are not the initial aggressor.
• No physical injury: if the evidence does not show impairment of physical condition or substantial pain, the assault charge cannot stand, though a lesser charge such as harassment may remain.
• Mental state: an accident or an injury caused without the intent or recklessness the statute requires does not meet the charge.
• Identification: bar fights and crowded scenes produce unreliable identifications, which can be tested at a Wade hearing under CPL Article 710.
• Credibility: inconsistent statements, motive to fabricate, and video that contradicts the complaint can undermine the prosecution's case.
• Defective accusatory instrument: a complaint that fails to allege every element can be dismissed under CPL 170.30 and 170.35.
• Suppression: statements taken in violation of Miranda and evidence from unlawful searches can be challenged under CPL Article 710.

Can an Assault Charge Be Resolved Without a Criminal Conviction?

Sometimes. New York law allows several resolutions short of a criminal conviction, including an adjournment in contemplation of dismissal (ACD) under CPL 170.55, a plea to a non-criminal violation such as harassment in the second degree, or a dismissal on legal grounds. Which options are realistic depends on the evidence, the injury, and any prior record.

• ACD (CPL 170.55): the case is adjourned and then dismissed and sealed if no new issues arise. The standard period is six months, but it can be one year in family offense cases.
• Violation plea: a plea to harassment in the second degree under Penal Law 240.26 is not a crime and is sealed under CPL 160.55.
• Reduced misdemeanor: attempted assault in the third degree is a class B misdemeanor with lower jail exposure.
• Conditional discharge or probation: sentences that avoid jail, often with conditions such as anger management or a final order of protection.
• Dismissal: on speedy trial grounds under CPL 30.30, for a defective accusatory instrument, or in the interest of justice under CPL 170.40.

For felony assault charges, different rules apply. Probation alone is not a legal sentence for assault in the second degree, which is why early work on the injury and weapon evidence matters so much in felony cases.

How Is a Domestic Assault Case Different in Erie County?

When an assault involves a family or household member, it is also a "family offense." That means the case can be heard in criminal court, Family Court, or both, and orders of protection are almost always issued. A family offense order of protection can also require surrender of firearms under CPL 530.14.

Under Family Court Act 812 and CPL 530.11, family offenses include assault, harassment, menacing, and several other charges between spouses, former spouses, parents of a child in common, relatives, and people in an intimate relationship. A family offense case can carry a one-year ACD period instead of six months. A conviction for a misdemeanor crime of domestic violence can also trigger a federal firearms prohibition under 18 U.S.C. 922(g)(9). The Buffalo domestic violence defense lawyer page covers those cases in more detail.

What Other Consequences Can an Assault Conviction Bring?

An assault conviction can affect far more than the sentence. It creates a criminal record that employers and landlords may see, can restrict firearm ownership, can carry immigration consequences for non-citizens, can affect professional licenses, and can be used in a civil lawsuit for damages. A final order of protection may also limit contact for years.

• Record sealing: under the Clean Slate Act, CPL 160.57, eligible misdemeanor convictions are sealed after three years and eligible felony convictions after eight years from sentencing or release from incarceration.
• Firearms: felony convictions and certain domestic violence misdemeanors bar firearm possession under state and federal law.
• Future cases: a violent felony conviction becomes a predicate for enhanced sentencing under Penal Law 70.04.
• Restitution: courts can order payment of medical expenses and other losses under Penal Law 60.27.

How Do Our Buffalo Assault Lawyers Handle These Cases?

Our Buffalo assault lawyers prepare each assault case as if it is going to trial, starting with what happened in the moments before the incident, the injury evidence, and every witness account. That preparation supports a stronger position at hearings, in negotiations with the prosecutor, and in front of a judge or jury.

• Arrest and arraignment: release arguments under CPL 510.10 and review of the temporary order of protection and its conditions.
• Discovery and investigation: review of body camera footage, surveillance video, 911 recordings, photographs, and medical records under CPL Article 245, with private investigators to locate witnesses and video before it is lost.
• Motions and hearings: motions to dismiss defective complaints, speedy trial motions under CPL 30.30, and suppression hearings under CPL Article 710.
• Plea negotiation: a plea on the right terms is welcome. A plea that gives away a real self-defense claim is not.
• Trial: bench or jury trial, including presenting justification and challenging the injury evidence.
• Sentencing and record relief: arguments for non-jail sentences where the law allows, and later sealing under CPL 160.57 or 160.59.

For felony charges, the Buffalo felony defense attorney page explains the grand jury and Erie County Court process. For other misdemeanors, see the Buffalo misdemeanor defense lawyer page.

Why Choose Thomas Trbovich for Your 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 for the Erie County District Attorney's Office 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

Contact Our Buffalo Assault Lawyers

If you have been charged with assault in Buffalo, Erie County, Niagara County, or anywhere in Western New York, talk with our Buffalo assault lawyers before your next court date. Bring the appearance ticket or complaint, the securing order, any order of protection, photographs of your own injuries, and the names of anyone who saw what happened to the first meeting with Trbovich Law Firm.