Even though only a fraction of criminal cases go to trial, the presumption of innocence is still the cornerstone of a successful criminal defense.[1] The state must prove guilt beyond any reasonable doubt. In other words, there must be overwhelming evidence and no plausible defenses. So, a Rochester criminal defense attorney must only poke holes in the state’s case or introduce a defense that has some rational basis.

Homicide Charges

In criminal court, homicide is usually the intentional or reckless killing of another person. “Intentional” usually means non-accidental. The defendant must intend to kill or seriously injure the alleged victim. “Reckless” usually means a conscious disregard of a known risk, such as pointing a gun at someone and not checking to see if it’s loaded. In the State of New York there are four levels of homicide:

First Degree Murder

Some people, mostly government workers, are in a protected class. As such, murder charges are usually elevated from second to first degree. Additionally, people waiting for an alleged victim might be guilty of first-degree murder.

Second Degree Murder

The most common homicide charge is an intentional, malicious killing. Frequently, arguments get out of control and someone grabs something which could be used as a weapon.

First Degree Manslaughter

The aforementioned empty-or-loaded-gun pointing is the best example of first-degree manslaughter. Pushing a person off a cliff without knowing its height is another example.

Second Degree Manslaughter

These offenses are usually crimes of passion. For example, Ben and Jerry might get into a fight. But instead of reaching for a golf club, Ben pushes Jerry and he falls down the stairs.

Procedural problems plague many homicide investigations. A Rochester criminal defense attorney may use these issues to exclude evidence. Lineup identifications are a good illustration. Usually, only double-blind lineups are reliable. Neither the administering officer nor the witness must know the suspect’s identity. Most lineups are only blind. The witness does not know who the suspect is, but the administering officer does. So, the administering officer usually gives the witness subtle clues, which may be involuntary, to point the witness toward a certain person. That lineup may not be admissible in a trial if something like this happens.

Sexual Battery Charges

This category covers a number of offenses, but most of them involve unconsented sexual contact. In terms of direct punishment, these offenses are not as severe as a homicide. But in terms of indirect consequences, they might be worse.

Much like first-degree murder is based on status or action, the consent defense could involve the alleged victim’s status or the alleged victim’s actions. Some people, such as underage or “helpless” people, cannot consent as a matter of law. In this context, excessive drug or alcohol use could render a person helpless.

In New York, lack of consent usually means “the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.”[2] That’s a rather vague definition.

Speaking of alcohol, this substance could affect the evidence in the case. Frequently, the defendant and alleged victim were both drinking. So, the alleged victim’s memory is often fuzzy. That could be a problem for the state since prosecutors have the burden of proof.

Assault Charges

These offenses are probably the most commonly charged crimes against persons in the Empire State. In New York, there are basically three levels of assault:

Assault by Contact

ABC is basically common-law battery. The state must only prove the defendant intentionally touched the alleged victim in a harmful or offensive manner. Injury is not an element of ABC. Maliciousness is not an element either. The touch must only be intentional (e. not accidental).

Simple Assault

If the alleged victim required first aid, prosecutors normally file assault charges. These cases are usually quite complex, especially if there was a domestic relationship between the defendant and the alleged victim.

Aggravated Assault

Continuing a familiar theme, AA can be a status or conduct crime. Emergency responders and other individuals are in a protected class. Also, prosecutors will file AA charges if the defendant uses a weapon and/or puts the alleged victim in the hospital. A “weapon” could be any object, such as a gun, knife, golf club, or even a coffee decanter.

To answer assault charges, Rochester criminal defense lawyers typically rely on a lack of evidence or an affirmative defense. The alleged victim’s testimony is usually critical in assault cases. And, over time, memories fade and witnesses lose interest in the case. Affirmative defenses include self-defense. The crime is usually excusable if defendants reasonably believed force was necessary to defend themselves or others.

Contact a Relentless Lawyer

Crimes against persons are serious, but defenses are available. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. The sooner you call us, the sooner we start working for you.



[1] https://scholarship.law.edu/cgi/viewcontent.cgi?article=1169&context=scholar

[2] https://www.nysenate.gov/legislation/laws/PEN/130.05

The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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