A charge of attempted assault in the first degree in New York is a Class C violent felony, and a conviction carries a mandatory determinate prison sentence between 3.5 and 15 years for a first-time offender.1New York State Senate. New York Penal Law 70.02 – Sentence of Imprisonment for a Violent Felony Offense Probation is not on the table. The charge applies when a person intends to commit first-degree assault and takes action that comes dangerously close to completing it, even though the assault itself is never finished.
What the Prosecution Has to Prove
Two things, together. First, that you specifically intended to commit first-degree assault. Second, that your conduct went beyond planning and came dangerously close to carrying it out. That is the standard New York courts have drawn from the attempt statute, which criminalizes conduct that “tends to effect the commission” of the crime.2New York State Senate. New York Penal Law 110.00 – Attempt to Commit a Crime3New York State Unified Court System. New York Penal Law 110.00 – Attempt to Commit a Crime
The intent has to match one of the ways first-degree assault can be committed under Penal Law § 120.10. In the vast majority of these cases, that means the prosecutor is trying to prove you intended to cause serious physical injury with a deadly weapon or dangerous instrument, or that you intended to cause permanent disfigurement or the permanent loss or impairment of a body part.4New York State Senate. New York Penal Law 120.10 – Assault in the First Degree “Serious physical injury” has a specific meaning: an injury creating a substantial risk of death, or causing death, serious and lasting disfigurement, or long-term loss or impairment of a bodily organ.5New York State Senate. New York Penal Law 10.00 – Definitions of Terms of General Use in This Chapter
The classic scenario is someone who fires a gun at another person and misses. Pointing and pulling the trigger is strong evidence of intent to cause serious physical injury, and the shot itself is conduct dangerously close to completing the assault. The miss is legally irrelevant. What matters is the combination of intent and conduct that nearly succeeds.
One point worth flagging because it trips people up: first-degree assault also has a “depraved indifference” branch based on recklessness rather than intent. Attempt requires proof of specific intent, and you generally cannot intend to be reckless, so attempted first-degree assault charges rarely proceed on that theory. Almost all of these prosecutions are built on the intentional subdivisions.
The Sentence If You’re Convicted
Because first-degree assault is a Class B violent felony, the attempt drops one grade to a Class C violent felony.6New York State Senate. New York Penal Law 110.05 – Attempt to Commit a Crime; Punishment That classification fixes the entire sentencing structure.
Prison
The judge must impose a determinate prison sentence between 3.5 and 15 years, in whole or half-year increments.1New York State Senate. New York Penal Law 70.02 – Sentence of Imprisonment for a Violent Felony Offense The statute says anyone convicted of a Class C violent felony “must be sentenced to imprisonment,” which forecloses probation entirely.7New York State Senate. New York Penal Law 60.05 – Authorized Disposition; Felonies Within that range, the judge weighs the facts of the case and your record. No one walks out of court on this charge without a prison term.
A prior violent felony conviction changes the math. Under Penal Law § 70.04, a second violent felony offender faces a higher mandatory minimum and the judge loses much of the discretion that exists for a first offense.
Post-Release Supervision
Prison is followed by a period of post-release supervision. For a Class C violent felony, that period runs from 2.5 to 5 years.8New York State Senate. New York Penal Law 70.45 – Determinate Sentence; Post-Release Supervision Conditions typically include check-ins, curfews, and restrictions on travel and associations. A violation can send you back to prison.
Money the Court Will Order
The felony conviction triggers a mandatory $300 surcharge plus a $25 crime victim assistance fee.9New York State Senate. New York Penal Law 60.35 – Mandatory Surcharge, Sex Offender Registration Fee, DNA Databank Fee, and Supplemental Sex Offender Victim Fee The court may also order restitution to the victim for out-of-pocket losses. Restitution on a felony is generally capped at $15,000, though the court can exceed that cap for medical expenses the victim actually incurred or for return of property.10New York State Senate. New York Penal Law 60.27 – Restitution and Reparation
Defenses That Get Raised
A charge is not a conviction. Which defense fits depends on the facts, but three come up repeatedly.
Lack of Intent
Attempt is a specific-intent crime. The prosecution has to show you meant to cause the particular kind of harm the assault statute describes, not that you were careless or that things got out of hand. If you swung an object during a chaotic fight without aiming at anyone in particular, the intent element may be weak. Voluntary intoxication can sometimes negate specific intent, though juries tend to view that argument skeptically.
Conduct Did Not Come Dangerously Close
The line between preparation and attempt is a fact question, and it’s where many of these cases are actually fought. Buying a knife is not attempted assault. Walking toward someone with the knife might be, depending on the surrounding circumstances. The closer the conduct got to finishing the assault, the harder this defense becomes to run.
Justification
Self-defense and defense of others are complete justifications for the use of force in New York. If you acted because you reasonably believed the other person was about to use deadly force against you or someone else, that belief can defeat both the underlying assault and the attempt. Reasonableness, not just sincerity, is what the jury has to find.
Consequences That Outlast the Sentence
A violent felony conviction reaches far past the release date. Some of the consequences are written into statute. Others are practical, but no less real.
Firearms
Under both New York and federal law, a felony conviction permanently bars you from possessing firearms. In New York, possessing even a rifle or shotgun after a felony conviction is itself a separate criminal offense.11New York State Senate. New York Penal Law 265.01 – Criminal Possession of a Weapon in the Fourth Degree
Employment and Housing
New York has laws that limit how employers and landlords can use criminal history in their decisions, but a Class C violent felony is a difficult record to overcome. Many professional licenses are unavailable to people with violent felony records, and background checks routinely disqualify applicants from jobs in healthcare, education, law enforcement, and financial services. Private landlords in competitive markets screen for felony convictions as well.
International Travel
Several countries deny entry to visitors with felony convictions. Canada is the most common issue for New York residents: Canadian immigration law treats serious foreign offenses as grounds for inadmissibility at the border, and a violent felony would almost certainly qualify. After completing the full sentence and waiting ten years, a person may be able to apply for rehabilitation status to regain entry, but the process is neither automatic nor guaranteed.
Immigration
For non-citizens, a violent felony conviction can trigger deportation and permanent bars to future immigration benefits. Attempted first-degree assault is virtually certain to qualify as an “aggravated felony” under federal immigration law, which makes the consequences especially severe and often irreversible. Anyone facing this charge who is not a U.S. citizen needs immigration counsel working alongside their criminal defense attorney from the start, because the plea decisions made in the criminal case will drive the immigration outcome.