“Violence” and “violent” are both ugly words. In the New York Penal Law and New York Criminal Procedure Law, offenses that can cause catastrophic injuries, traumatic physical and emotional wounds and even death are designated as violent crimes. While each one of us may have a subjective view of what violent means in the context our respective lives, New York Criminal Procedure Law 70.02 specifically defines and differentiates New York violent crimes from all other offenses. The relevancy as to what is a violent crime and what is an “ordinary” offense is critical to any criminal case as well as to how a criminal defense attorney manages his representation of a client. As a preliminary matter, sentencing for violent crimes differ from other offenses and for those who want to pursue the sealing of their criminal record for up to two convictions in accordance with New York Criminal Procedure Law 160.59, any violent offense precludes such a remedy.
As shocking is this may sound, not every Assault, Burglary or Robbery is a violent crime. How can that be, you ask? If every Burglary and Robbery is a felony and every Assault involves some magnitude of physical injury as a result of violence, how can these crimes not fall under the violent crime umbrella of NY CPL 70.02? Simply, as defined by statute, New York Penal Law 120.00, Third Degree Assault, New York Penal Law 140.20, Third Degree Felony and New York Penal Law 160.05, Third Degree Robbery, are not statutorily defined violent offenses as a matter of law.
There is no definition that you can read to better understand what make a crime a legally defined violent offense and then apply that language to a particular crime. Instead, the New York State legislature identified certain offenses as violent. These crimes are not punishable as indeterminate sentences. Meaning, violent crimes have determinate sentences. Instead of being sentenced to three to nine years on a multi million dollar fraud case charging Grand Larceny in the First Degree, a violent crime such as Second Degree Criminal Possession of a Weapon gives a precise sentence as opposed to a range. As a class “C” felony, this latter crime is punishable by a minimum of three and one half years to a maximum of fifteen years in prison. There is no range, but a sentence of three and one half years, five years or any one number up to fifteen.
Too many crimes to list here, know whether an offense is a statutorily defined or identified as a violent crime pursuant to CPL 70.20 is of critical import. Yes, a violent crime conviction such as Second Degree Assault, First Degree Rape, and Second Degree Criminal Possession of a Weapon will all prevent you from having your criminal convictions and record sealed, but most of these crimes have mandatory incarceratroy sentences upon conviction. A first time offender convicted for a class “B”, “C”, “D”, or “E” violent felony faces a minimum sentences of five, three and one half, two and one and one half years in prison and a maximum of twenty five, fifteen, seven and four years in custody respectively. This is vastly different when compared to similarly classified non-violent felonies for first time offenders where incarceration, other then class “B” felonies is not always required by law.
At bottom, when heading into court from arrest and arraignment through trial and potentially sealing, knowing whether your arrest charges and potential criminal record involve a violent crime or not is extremely important. Whether you and your criminal defense attorney will do what you can to avail yourself of a non-violent criminal plea or it does not change your view of your case is something you can discuss with your counsel, but always have your eyes wide open.
To learn more about any of the New York violent crimes listed above, how to seal your criminal conviction in New York, or to better understand the processes that make up the criminal justice system from arrest and arraignment through potential trial and acquittal, review the links found here and New-York-Lawyers.org.
A criminal defense firm representing clients in the New York City region as well clients throughout the State of New York in conviction sealing applications and motions, the New York criminal lawyers at Saland Law PC served as prosecutors in the Manhattan District Attorney’s Office prior to establishing the law practice.