Simple Assault Defense Lawyer

Buffalo Simple Assault Lawyer

As a Buffalo simple assault lawyer, Thomas Trbovich defends people charged with assault in the third degree under Penal Law 120.00, the misdemeanor New York uses for what most people call simple assault. A conviction can mean up to 364 days in jail, probation, an order of protection, and a criminal record in Erie County and Western New York.

Trbovich Law Firm handles simple assault cases through its Buffalo misdemeanor defense practice, part of the firm's broader Buffalo criminal defense work. Partner Suzanne Garvey served as a prosecutor with the Erie County District Attorney's Office from 1990 until March 2023, so our Buffalo simple assault lawyers understand how assault cases are screened, charged, and negotiated by the prosecution.

What Is Simple Assault in New York?

Simple assault in New York is assault in the third degree under Penal Law 120.00. It covers intentionally causing physical injury to another person, recklessly causing physical injury, or causing physical injury with a deadly weapon or dangerous instrument through criminal negligence. It is a class A misdemeanor, not a felony.

New York law does not use the terms "simple assault" or "battery." Those labels come from other states and from common usage. In a Buffalo courtroom, the charge on the paperwork will read "Assault in the Third Degree, PL 120.00," followed by the subdivision number:

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

Simple assault charges in Buffalo often arise from bar and parking lot fights, disputes between neighbors or co-workers, incidents after Bills games and concerts, school and youth sports disputes, and domestic arguments. The Buffalo assault lawyer page gives an overview of every degree of assault.

Is Simple Assault a Felony or a Misdemeanor in New York?

Simple assault is a misdemeanor in New York. Assault in the third degree is a class A misdemeanor, the most serious level of misdemeanor. The charge becomes a felony, assault in the second degree or higher, when there is a serious physical injury, a deadly weapon or dangerous instrument used with intent, or a protected victim such as a police officer or nurse.

The line between a misdemeanor and a felony assault often depends on a single fact. Prosecutors sometimes charge a felony at arrest and reduce it to assault in the third degree once medical records show the injury was not serious. The reverse also happens. Felony assault charges and sentencing rules are covered on the Buffalo aggravated assault lawyer page.

What Is the Sentence for Assault in the Third Degree in New York?

Assault in the third degree carries up to 364 days in jail under Penal Law 70.15, up to three years of probation, a fine of up to $1,000, restitution, or a conditional discharge. A judge can also issue a final order of protection that lasts up to five years after a class A misdemeanor conviction.

• Jail: a definite sentence of up to 364 days (Penal Law 70.15(1))
• Probation: community supervision with conditions (Penal Law 65.00)
• Conditional discharge: one year of conditions, often including anger management or a stay-away order (Penal Law 65.05)
• Fine: up to $1,000 (Penal Law 80.05)
• Restitution: payment of the injured person's out-of-pocket costs, such as medical bills (Penal Law 60.27)
• Final order of protection: up to five years after a class A misdemeanor conviction (CPL 530.12 and 530.13)
• Surcharges: mandatory surcharges and fees under Penal Law 60.35

Attempted assault in the third degree, a class B misdemeanor, carries up to 3 months in jail. A person with no record facing a first-time simple assault charge may be eligible for resolutions short of a conviction, but jail is legally possible on any class A misdemeanor, and prior convictions narrow the options.

What Counts as Physical Injury in a Simple Assault Case?

Physical injury under Penal Law 10.00(9) means impairment of physical condition or substantial pain. New York's Court of Appeals has held that substantial pain must be more than slight or trivial, but it need not be severe. Petty slaps, shoves, and kicks without lasting pain generally do not meet the standard.

Because physical injury is an element, the injury evidence often decides the case. Two Court of Appeals decisions frame the analysis:

• Matter of Philip A., 49 NY2d 198 (1980): the court explained that petty slaps, shoves, kicks, and similar acts are not meant to be treated as physical injury.
• People v. Chiddick, 8 NY3d 445 (2007): the court held that substantial pain means more than slight or trivial pain, and it considered factors such as the nature of the injury, whether medical treatment was sought, and how the person described the pain.

Photographs, emergency room and urgent care records, the timing of any treatment, and the injured person's own statements about pain are often the most important evidence. When the evidence does not show physical injury, the charge may not stand, though a lesser charge such as harassment in the second degree may remain.

What Is the Difference Between Intentional, Reckless, and Negligent Simple Assault?

The three subdivisions of assault in the third degree turn on mental state. Subdivision 1 requires intent to cause physical injury. Subdivision 2 requires recklessness, meaning a person consciously disregarded a substantial risk of injury. Subdivision 3 requires criminal negligence plus a deadly weapon or dangerous instrument. Penal Law 15.05 defines each mental state.

• Intentionally (Penal Law 15.05(1)): the person's conscious objective was to cause the injury, such as throwing a punch at someone
• Recklessly (Penal Law 15.05(3)): the person was aware of and consciously disregarded a substantial and unjustifiable risk, such as swinging a bottle in a crowded room
• Criminal negligence (Penal Law 15.05(4)): the person failed to perceive a substantial and unjustifiable risk that a reasonable person would have seen, involving a deadly weapon or dangerous instrument

The mental state charged shapes the defense. An accident is not an intentional assault, and a careless act without a weapon or dangerous instrument cannot support subdivision 3. Reviewing exactly which subdivision appears on the complaint is one of the first steps in every simple assault case.

Can Simple Assault Be Reduced to Harassment or Disorderly Conduct?

Sometimes. In Buffalo and Erie County, assault in the third degree may be resolved with a plea to harassment in the second degree or disorderly conduct, both non-criminal violations that are sealed under CPL 160.55, or with an adjournment in contemplation of dismissal (ACD) under CPL 170.55. These outcomes depend 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, after six months, or one year in family offense cases.
• Harassment in the second degree (Penal Law 240.26): a violation that does not require any injury. It is not a crime.
• Disorderly conduct (Penal Law 240.20): a violation covering fighting and tumultuous behavior. See the Buffalo disorderly conduct lawyer page.
• Attempted assault in the third degree: a class B misdemeanor, still a crime, but with lower jail exposure.

A reduction to a violation changes the case from a criminal conviction to a sealed, non-criminal one. It is still a guilty plea, so conditions such as a final order of protection, anger management, or restitution should be reviewed before accepting it.

Can a Simple Assault Charge Be Dropped If the Other Person Will Not Cooperate?

The complaining witness cannot drop a simple assault charge in New York, because the District Attorney prosecutes on behalf of the People. But a misdemeanor assault case usually needs a sworn, non-hearsay statement from someone with direct knowledge, often a supporting deposition, to convert the complaint into an information under CPL 100.40 and 170.65 before trial.

If the prosecution cannot convert the complaint and be ready for trial within 90 days of commencement under CPL 30.30, not counting excludable time, the case can be dismissed on speedy trial grounds. Prosecutors may also try to proceed with other evidence, such as 911 recordings, body camera footage, photographs, or medical records. Meanwhile, any temporary order of protection stays in effect until the court changes it, even if the protected person wants contact.

What Happens After a Simple Assault Arrest in Buffalo?

After a simple assault arrest in Buffalo, many people receive a desk appearance ticket with a later date in Buffalo City Court or the local town or village court. Others are held for arraignment the next court day. At arraignment, the judge reads the charge, addresses release, and usually issues a temporary order of protection in favor of the alleged victim.

• Appearance ticket: under CPL Article 150, police generally must issue an appearance ticket for most misdemeanors. See the guide on desk appearance tickets in Buffalo.
• Release: assault in the third degree generally is not a qualifying offense for bail under CPL 510.10, so release is generally required, often with conditions.
• "Refrain from" versus "stay away" orders: a refrain-from order allows contact but bars any assault, harassment, threats, or other offenses. A stay-away order bars any contact at all, including texts and calls, and can require moving out of a shared home.
• Discovery: under CPL Article 245, the prosecution must turn over police reports, body camera footage, 911 recordings, photographs, and witness information.

Write down what happened as soon as possible: who started the confrontation, who saw it, what was said, and whether anyone recorded it on a phone or a business security camera.

Is Simple Assault a Domestic Violence Charge in Erie County?

Simple assault becomes a family offense when it involves a spouse, former spouse, intimate partner, relative, or the parent of a child in common. The case can then be heard in criminal court, Family Court, or both. An ACD in a family offense case lasts one year, and a conviction can trigger a federal firearm ban under 18 U.S.C. 922(g)(9).

Family offenses are defined in CPL 530.11 and Family Court Act 812. In Erie County, a domestic assault arrest almost always results in a temporary order of protection, and the court may order the surrender of firearms and any firearm license under CPL 530.14. Because a domestic simple assault conviction can permanently affect gun rights under federal law, how the case is resolved matters as much as the sentence. The Buffalo domestic violence defense lawyer page covers these cases in more detail.

What Defenses Apply to a Simple Assault Charge in Buffalo?

The defenses to a simple assault charge in Buffalo usually involve self-defense, the injury evidence, mental state, and credibility. Justification under Penal Law 35.15, an injury that does not meet the legal definition, an accident, misidentification, and an accuser with a motive to fabricate are the most common defenses.

• Justification (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 raised, the prosecution must disprove justification beyond a reasonable doubt. The initial aggressor generally cannot claim it unless they withdrew and communicated that withdrawal.
• Defense of others: the same justification rules apply when defending another person.
• No physical injury: the evidence must show impairment of physical condition or substantial pain.
• Mental state: an accidental injury does not meet subdivision 1, and a careless act without a weapon or dangerous instrument cannot meet subdivision 3.
• Identification: crowded scenes and poor lighting produce mistaken identifications, which can be challenged at a Wade hearing under CPL Article 710.
• Credibility: custody disputes, breakups, and workplace conflicts can create motives to exaggerate or fabricate.
• Suppression: statements to police without Miranda warnings can be challenged under CPL Article 710.

What Happens at a Simple Assault Trial in Buffalo?

Assault in the third degree is a class A misdemeanor, so a person charged in Buffalo City Court or a town court outside New York City has the right to a jury trial. Under CPL 360.10, misdemeanor juries outside New York City have six jurors. A person can also choose a bench trial, where the judge decides the verdict.

At trial, the prosecution must prove every element beyond a reasonable doubt: the physical injury, the mental state, and that the defendant caused the injury. When justification is raised, the jury is instructed that the prosecution must also disprove self-defense. Video evidence, medical records, and witness credibility usually carry the most weight. Choosing between a jury and a bench trial is a strategic decision based on the facts, the defense, and the court.

What Other Consequences Follow a Simple Assault Conviction?

A simple assault conviction creates a criminal record that employers, landlords, and licensing boards may see until it is sealed. It can also affect firearm rights in domestic cases, immigration status for non-citizens, professional licenses for teachers, nurses, and other licensed workers, and college enrollment. The injured person may also file a civil lawsuit.

• Record sealing: under the Clean Slate Act, CPL 160.57, eligible misdemeanor convictions are sealed three years after sentencing or release from incarceration.
• Immigration: some assault convictions can carry immigration consequences, so any plea by a non-citizen should be reviewed carefully.
• Young people: people under 19 may be eligible for youthful offender treatment under CPL Article 720, which replaces the conviction with a sealed finding.
• Civil claims: a conviction can be used as evidence in a related civil lawsuit for damages.

How Do Our Buffalo Simple Assault Lawyers Handle These Cases?

Our Buffalo simple assault lawyers prepare each 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 strong position when seeking an ACD, a violation plea, or a dismissal, and it protects the self-defense claim if the case goes to a jury.

• Arrest and arraignment: release arguments, review of the temporary order of protection, and requests to change a stay-away order to a refrain-from order when appropriate.
• Discovery and investigation: review of body camera footage, 911 calls, photographs, and medical records under CPL Article 245, with private investigators to find witnesses and preserve business and phone video before it is deleted.
• Motions and hearings: challenges to unconverted or 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: six-person jury or bench trial, presenting justification and challenging the injury and identification evidence.
• Sentencing and record relief: arguments for non-jail sentences, youthful offender treatment where eligible, and sealing under CPL 160.50, 160.55, or 160.57.

Related charges are covered on the Buffalo criminal mischief lawyer page, since property damage is often charged in the same incident.

Why Choose Thomas Trbovich for Your Simple 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, misdemeanor, felony, DWI, and traffic 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

Contact Our Buffalo Simple Assault Lawyers

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