BRONX, NY - A domestic violence assault becomes a Class D felony in New York when the accused either intentionally causes serious physical injury or uses a deadly weapon or dangerous instrument to cause physical injury. Bronx criminal defense attorney David Mejia Colgan of David Mejia Colgan, Esq. (https://dmclawny.com/assault-second-degree-pl-120-05-domestic-violence/) addresses how New York Penal Law Section 120.05 applies in domestic settings and what those facing felony assault charges should understand.
According to Bronx criminal defense attorney David Mejia Colgan, the distinction between misdemeanor and felony assault in New York centers on two factors: the severity of the injury and the circumstances of the offense. Assault in the Third Degree under Penal Law Section 120.00 is a Class A misdemeanor carrying up to one year in jail, while Assault in the Second Degree under Section 120.05 is a Class D violent felony punishable by two to seven years in state prison. "The word violent in the classification matters because it triggers mandatory sentencing provisions that limit a judge's discretion at sentencing," Mejia Colgan explains.
Bronx criminal defense attorney David Mejia Colgan notes that New York does not have a separate statute called domestic violence. Prosecutors at the Bronx County District Attorney's Office charge domestic incidents under the same assault, menacing, and harassment statutes that apply in any case, and a relationship between the accused and the alleged victim under Family Court Act Section 812 or Criminal Procedure Law Section 530.11 triggers the domestic violence designation. That classification often leads to heightened scrutiny, a temporary order of protection at arraignment in Bronx Criminal Court, and possible firearm restrictions.
Two subsections of Penal Law Section 120.05 are most commonly invoked in domestic matters. Subsection (1) requires proof that the accused intentionally caused "serious physical injury" as defined in Penal Law Section 10.00(10), meaning injury creating a substantial risk of death, causing death, or producing serious and protracted disfigurement, impairment of health, or loss of organ function. Subsection (2) carries a lower injury threshold, requiring only ordinary "physical injury," but requires proof that the injury was caused by a deadly weapon or dangerous instrument.
Attorney Mejia Colgan adds that a "dangerous instrument" under Penal Law Section 10.00(13) is defined by use rather than by the nature of the object itself. New York courts have held that ordinary household items, including kitchen knives, glass bottles, heavy cookware, belts with buckles, and even a sidewalk, may qualify when used in a manner readily capable of causing death or serious physical injury. "If someone strikes a partner with a household object and causes a bruise, what would otherwise be a misdemeanor can become a felony because the object may qualify as a dangerous instrument," Mejia Colgan notes.
A first-time conviction for a Class D violent felony carries a determinate prison sentence of two to seven years under Penal Law Section 70.02, plus 1.5 to 3 years of post-release supervision. A final order of protection may issue for up to eight years from sentencing or from the expiration of the sentence imposed, whichever is greater. The firm emphasizes that violent felony classification creates a presumption of incarceration that is difficult to overcome at sentencing.
The firm represents individuals throughout the Bronx in felony assault matters in the Bronx County Supreme Court at 265 East 161st Street and the Bronx Criminal Court. Common defense strategies include challenging the medical evidence used to establish "serious physical injury," asserting justification under Penal Law Section 35.15 when the accused was the person initially attacked, disputing the dangerous instrument classification, and demonstrating that the injury resulted from reckless or accidental conduct rather than intentional action.
"Intent is a mental state the prosecution must prove beyond a reasonable doubt, and it is often inferred from circumstances rather than direct evidence," explains Mejia Colgan. He adds that domestic relationships frequently involve disputes over custody, finances, or separation that can complicate the credibility of allegations and warrant thorough investigation by the defense.
A felony conviction also brings significant collateral consequences. Under federal law, a person convicted of a crime punishable by more than one year is generally prohibited from possessing firearms or ammunition, and Criminal Procedure Law Section 370.25 requires the court to order the surrender of firearms upon conviction for a felony or serious offense. For non-citizens, a felony assault conviction can carry serious immigration consequences depending on the offense and the sentence imposed.
For those facing felony assault allegations connected to a domestic relationship in the Bronx, the firm handles every aspect of the case from arraignment through resolution.
About David Mejia Colgan, Esq.:
David Mejia Colgan, Esq. is a Bronx-based criminal defense practice focused on domestic violence, criminal, and matrimonial matters. Led by attorney David Mejia Colgan, a former Bronx Assistant District Attorney with more than 30 years of experience, the firm represents clients throughout the Bronx and the greater New York City area, including Westchester, Rockland, Orange, Putnam, Nassau, and Suffolk counties. For consultations, call (718) 484-8820.
Email: david.m.colgan@gmail.com
Media Contact
Name
David Mejia Colgan, Esq.
Contact name
David Mejia Colgan, Esq.
Contact phone
(718) 484-8820
Contact address
910 Grand Concourse Suite 1F
City
Bronx
State
NY
Zip
10451
Country
United States
Url
https://dmclawny.com/
