This Article is the second in a series explaining how Westchester County, New York criminal defense attorneys defend individuals charged with Assault in the Westchester County Domestic Violence Part. In Part I of the Article, I provided an overview of the criminal charge of Assault in the Westchester County, New York Domestic Violence Court. This section of the Article will focus on the elements of misdemeanor assault.

Under New York State Penal Law Section 120.00, a person is guilty of Assault in the 3rd degree when:

1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

Assault in the 3rd degree is a Class A misdemeanor.

Accordingly, in New York, intent to cause physical injury is not the only means by which a person may be convicted of Assault. Actions that are deemed reckless or criminally negligent are all subject to an Assault charge.

There are, of course, defenses to an Assault charge. The most common defense utilized is "justification". There are several examples of "justifiable force". For example, under Penal Law Section 35.05, physical force is justifiable under several scenarios including emergency situations to avoid an imminent public or private injury which is about to occur and in which the person using the physical force is not at fault for the situation having arisen. Penal Law Section 35.10 authorizes the use of physical force in several situations including self defense, defense of a third person, in defense of premises, to prevent a larceny or criminal mischief, or to effect an arrest or prevent the escape from custody.

As in most New York criminal defense cases, the series of events, the actions of the actors, and the exact circumstances giving rise to the incident are unique and must be thoroughly investigated and evaluated to determine if a defense exists, or indeed, if a crime was properly charged.

The Westchester County Domestic Violence Part hears criminal cases such as assault, menacing and harassment against a spouse, family member or significant other. These matters originate in local courts such as New Rochelle City Court or White Plains City Court. Criminal charges are filed and presented in these local courts in the same way that other misdemeanor and felony cases originate. Once charges are filed, the accused is arraigned in local court and bail, if any, is set. Criminal defense attorneys are usually advised that the case is expected to be transferred to the Domestic Violence Part. Accordingly, once the arraignment is concluded, an adjournment is sought to allow for the Transfer Order to issue. That process typically requires one to two weeks. At the next appearance, the Transfer Order is served on the accused and his/her criminal defense attorney and the matter is marked off the local court calendar. From that point, the matter will be heard in the DV Part.

You've been stopped by the police and suspected of Driving While Intoxicated (DWI) or Driving While Ability Impaired (DWAI). The police have now asked you to submit to a Chemical Test, usually a breathalyzer (blowing), urine or blood test to determine your Blood Alcohol Concentration (BAC). You have refused to take the test, been arrested and arraigned in Court. What happens next?

At arraignment, the Court advises the defendant and counsel of the date and time of the Refusal Hearing. The hearing must be conducted within 15 days of the date of arraignment. The Refusal Hearing is conducted at a local DMV office and presided over by a DMV Administrative Law Judge.

At the Refusal Hearing, the following four (4) issues are addressed:

1. Did the police officer have reasonable grounds to believe that the defendant had been driving under the influence or while his/her ability was impaired,
2. Did the police officer make a lawful arrest,
3. Was the defendant given sufficient warning, in clear or unequivocal language, prior to the refusal, that the refusal to submit to the chemical test would result in the immediate suspension and subsequent revocation of the defendant's license or privilege to operate a motor vehicle in New York.
4. Did the defendant, after reasonable grounds have been shown, following a lawful arrest, and following sufficient warning of the consequences, then refuse to submit to a chemical test.

Following the presentation of evidence and cross examination, the Administrative Law Judge may render an immediate decision or reserve decision. If the Administrative Law Judge determines that all four (4) issues have been affirmatively proven, the defendant's license or privilege to operate a motor vehicle in New York State will be immediately revoked for a period of either one (1) year or eighteen (18) months depending upon certain factors.

If the Administrative Law Judge determines that the evidence failed to establish ALL four (4) factors, the temporary suspension shall be immediately terminated.

A person in this position should always retain counsel for the Refusal Hearing. Often, there are one or more elements that a skilled Westchester criminal defense lawyer can attack in an effort to avoid the mandatory revocation.