Assault in the Third Degree DAT (Desk Appearance Ticket) Penal Law 120.00

 By James Shalley

You may not feel terribly lucky, but if you got a Desk Appearance Ticket for Assault in the Third Degree in New York City, you are actually pretty lucky. Although as compared with other offenses, assault in the third degree does represent a significant number of Desk Appearance Tickets given out, you are far more likely to be put "through the system" if you are charged with assault. Even under the new sweeping criminal justice reforms in New York that require the use of Desk Appearance Tickets in many more cases than in the past, assault cases are not significantly affected. Under the new laws, DATs are not mandatory when the possibility exists that the Government may seek an order of protection, as in assault in the third degree cases.

Unlike many of the other more commonly handed out DATs, assault DATs are also not terribly likely to be able to be settled right off the bat on your first date of appearance for the arraignment. Cases where there are identifiable private victims, such as assault are treated to a policy, in most cases, where the office refuses to negotiate or settle. So if you have thoughts in your mind about showing up to explain things to the judge and it all going away, think again. This is going to be more complicated.

The one area where this may not be the situation is if the case involves "cross complaints". A cross complaint situation is one where both parties to the assault accusations are charged individually with assaulting each other. In these situations, where both parties actually have lawyers, the Government and the Court are occasionally willing to entertain "cross dismissals" if both parties are willing to end it there.

Other than that, the case is likely to proceed forward.

In fact, of all the DAT cases that exist, I would venture to bet that the assault DAT is the sort of DAT that is most likely to find its way to a trial. If that worries you because you are not interested in a trial, don't be so worried. Statistics are still on your side - in a big way. In 2014, there were more than 1 million, one hundred thousand cases brought in New York City Criminal Courts. Of those cases, only 175 went to a jury trial. That should give you an idea that the odds are against you going to trial. So fear not if trial is not what are hoping for.

At the arraignment of an assault DAT, however, there really will not be any issue of monetary bail in most cases, because although assault in the third degree is not a mandatory Appearance Ticket situation, it is a release without monetary conditions situation (with few exceptions).

Orders of Protection

Another reality of the process is that in all but the rarest of situations, the Judge will impose an Order of Protection on you before your appearance is over. In fact, if you are not given an appearance ticket, this is precisely the reason you weren’t.

This means that you will be ordered by the Judge to have nothing to do with the complaining witness until the Order is lifted or modified by another Judge. This Order applies to you only, not, frustratingly, to the complaining witness. The complaining witness is free to call you, come to your door, beg your forgiveness from across the street, flame you on Facebook, and send you text messages galore. Complaining witnesses will not get in trouble for this until their behavior reaches a form of criminal harassment (and good luck convincing the District Attorney’s Office or the Police to take action against a current complaining witness).

Should you respond in any way to any of these provocations, however, YOU are guilty of violating the Order and subject to rearrest for the crime of Contempt of Court. This can and often does create no end of difficulty and frustration.

What can be especially absurd here is when there a long delay between the arrest and the DAT arraignment and the complaining witness and you have improved relations and been in communication with each other regularly. Suddenly now, however, the Government makes a big show of rushing to the complaining witness' defense and insisting that the Court now order you to stay away. As crazy as that sounds, there is virtually no use arguing about it. Under the new appearance ticket laws starting in 2020, however, the maximum time between arrest and first appearance on an appearance ticket is 20 days.

The general rule of thumb with Orders of Protection in Criminal Court is that if the Prosecutor asks for one, the Prosecutors gets one. That's the way it is.

Defenses

You should begin to discuss the possibility of defenses to assault (including self defense) with your lawyer as soon as possible. Witnesses need to be located, surveillance cameras need to be located, etc. Time is often of the essence here in order to best preserve your position. It is extremely unwise to wait a month until after your court date to retain a lawyer and get started on the investigation. You may find that witnesses are harder to find and surveillance camera data has been overwritten.

Settlements

If trial is not your goal, and your goal is some sort of settlement, then that may be possible as well. If you have no prior criminal history, and the complaining witness was not to terribly injured then a settlement that does not give you a criminal record or send you to jail may well be possible for your lawyer to negotiate. In addition, the Adjournment in Contemplation of Dismissal (a sort of delayed dismissal) may also be available in some cases.

Collateral Issues

Assault cases can pose particular problems for non-citizens, and those in certain sorts of Government regulated jobs. The simple accusation of assault is often enough to get teachers suspended pending the outcome or security guards suspended pending the outcome, just to name some of the more common consequences. Therefore, you need to review your personal, employment, citizenship, and school situations with your lawyer, well before you go to Court and certainly before resolving your case.

Outlook for Settlements if Trial is Not What you are Looking For

In the end, most assault cases that start out as Desk Appearance Tickets are capable of reasonable settlement, if you are not looking for a trial. But you need to pay attention in order to make sure you get it right.

James Shalley has been practicing criminal defense in New York for more than 30 years.

Call 347-612-9830 for your free consultation with JAMES SHALLEY today.

2020 Discovery Changes and Assault in the Third Degree

The discovery reforms of 2020 will have a significant impact on assault in the third degree cases because the Government will now be required to hand over all information in their possession within 15 days of first appearance. This represents a monumental change in New York and will now give people accused of crimes the same ability to understand and review their cases with their lawyers that people in civil lawsuits enjoy. The ability to review favorable and unfavorable information quickly with a lawyer will make for much more intelligent decision-making about how best to proceed, removing much guesswork from the process. The lawyer will get to use more legal skills and need to rely on fewer fortune telling skills.