The State of New York, like other states, divides the crime of assault into different levels based on what happened in the incident. Simple assault occurs when the defendant causes physical injury to another person. Higher degrees of assault carries higher penalties and require intent to harm and, in some cases, the use of a deadly weapon. The age or mental ability of the victim and whether or not the victim was a police officer or other type of law enforcement officer are also factors used to determine the seriousness of an assault offense.
Under U.S. immigration law, an aggravated felony is a violent crime for which at least 1 year of incarceration was imposed.
Aggravated Assault in New York
Under New York Penal Law § 120.05(2), a person is guilty of assault in the second degree when, with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.
In Morris v. Holder, 676 F.3d 309 (2012), the U.S. Court of Appeals for the Second Circuit held that N.Y.P.L. § 120.05(02) is an aggravated felony, crime of violence.
An immigrant pleading guilty to N.Y.P.L. § 120.05(02) will be almost automatically deported from the United States and subject to mandatory detention under INA § 236(c).
However, not all the subsections of N.Y.P.L. § 120.05(02) are considered an aggravated felony under U.S. immigration law.
For instance, the U.S. Court of Appeals for the Fourth Circuit held in 2006 that the language of N.Y.P.L. 120.05(4) “does not contain an element that there be the intentional employment of physical force against a person or thing, and thus is beyond the scope of 18 U.S.C. 16(a)”. Garcia v. Gonzales, 455 F.3d 465, 468 (4th Cir., 2006).
Moreover, the U.S. Court of Appeals for the Second Circuit held in 2003 that “a conviction under N.Y.P.L. § 120.05(6) is not a `crime of violence’ under 18 U.S.C. 16(a), because a conviction under N.Y.P.L. § 120.05(6), while requiring proof of physical injury, does not require, as an element of the offense, that the defendantuse physical force to inflict that injury”. Chrzanoski v. Ashcroft, 327 F.3d 188, 195 (2nd Cir., 2003).
Aggravated Assault in New Jersey
Under N.J. Stat. Ann. § 2C:12–1(b), a person is guilty of third-degree aggravated assault if he or she:
- Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or
- Attempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury; or
- Knowingly, under circumstances manifesting extreme indifference to the value of human life, points or displays a firearm, as defined in subsection f. of N.J.S. 2C:39–1, at or in the direction of a law enforcement officer.
Aggravated assault in New Jersey is an aggravated felony, crime of violence. However, negligent assault is not an aggravated felony, and not even a crime involving moral turpitude. Salomon-Bajxac v. Attorney Gen. of U.S., 558 F. App’x 160, 162 (3d Cir. 2014)
If you have been charged with aggravated assault but you are represented by a good criminal immigration lawyer, you may be able to plead guilty to an assault charge that does not affect your immigration status in the United States.