Assault With the Intent to Commit a Violent Felony in New Mexico

In New Mexico, the crime of assault does not involve actual physical contact. Assault is defined as an attempt to commit a physical attack or as intentional threats, words, or actions that cause a person to feel afraid of impending violence. For example, attempting to hit someone or threatening to hit a person is an assault.

In New Mexico, assault is generally a misdemeanor, unless there are aggravating circumstances such as the use of a deadly weapon, or when a person commits assault with the intent to commit a violent felony. Assault with the intent to commit a violent felony is a third degree felony in New Mexico, exposing the defendant to substantial time in prison, probation, and fines.

(N.M. Stat. Ann. § § 30-3-1, 30-3-2, 30-3-3.)

In New Mexico, actual offensive physical contact, such as punching another person or hitting someone with an object, is a battery.

(N.M. Stat. Ann. § 30-3-4.)

For more information in misdemeanor assault and battery, see  Simple Assault and Battery in New Mexico. For more information on assault with a deadly weapon and aggravated battery, see  New Mexico Assault and Battery: Deadly Weapon & Other Aggravated Charges.

What Is Assault With Intent to Commit a Violent Felony?

In New Mexico, someone who threatens or attempts to strike someone may be charged with assault to commit a violent felony if the actor intends to:

  • kill
  • rape, or
  • commit a robbery or burglary.

Threatening to shoot someone with the intent to murder the person is a very straightforward example of an assault with intent to commit a violent felony. Threatening to slit a woman’s throat or to otherwise physically injure her while committing sexual assault is another example of this crime.

(N.M. Stat. Ann. § 30-3-3.)

Intending to rob

Robbery is defined as stealing something from another by the use of force or threatening the owner with violence. An offender who robs a convenience store and attempts to strike the store clerk or threatens the clerk with physical violence during the robbery has committed assault with the intent of committing a violent felony.

(N.M. Stat. Ann. § 30-16-2.)

Intending to commit burglary

A burglary occurs when a person enters a vehicle or property without authorization, intending to commit a felony or steal any item, regardless of the value. If a person shoots at the resident of the house or threatens a car owner while burglarizing the house or the car, that person is guilty of assault with intent to commit a violent felony.

(N.M. Stat. Ann. § 3-16-3.)

Domestic Violence and Assault with Intent to Commit a Violent Felony

Assault against a household member with intent to commit a violent felony is a third degree felony with substantial prison time and fines, depending on the offender’s criminal history.

(N.M. Stat. Ann. § 30-3-14.)

For more information, see  New Mexico Domestic Violence Laws.

Penalties for Assault With Intent to Commit a Violent Felony

A person who is convicted of assault with intent to commit a violent felony in New Mexico is guilty of a third degree felony and faces the following possible penalties:

  • up to three years in prison (or up to six years in prison, if the assault results in the death of another)
  • a fine up to $5,000, or both
  • probation up to five years, and
  • restitution.

(N.M. Stat. Ann. § § 30-3-3, 31-18-15, 31-20-5.)

Protected victims

If the victim of the assault is a school employee or health care worker (such as a doctor, nurse, or paramedic), and the offense occurs while the employee, worker or official is carrying out his duties, the crime is a second degree felony. Punishments include:

  • up to nine years in prison (or up to 15 years in prison, if the assault results in the death of another)
  • a fine up to $12,500, or both
  • probation up to five years, and
  • restitution.

(N.M. Stat. Ann. § § 30-3-9, 30-3-9.2, 31-18-15, 31-20-5.)

Prison and parole

The court has the discretion to impose a minimum sentence of two years up to a maximum sentence of three years to be served in prison, on probation, or in a combination of both. The prosecutor also can present evidence of aggravating circumstances and request that the total sentence be increased by one-third, up to four years. The court must conduct a hearing on this issue and the defendant is entitled to have a jury for this proceeding or may waive that right and have the hearing before the judge. If the jury or judge find that there are aggravating circumstances (for instance, that the crime was especially cruel or brutal), the judge then decides what sentence to impose, up to the maximum of four years.

(N.M. Stat. Ann. § 31-18-15.1.)

After serving the sentence imposed by the court, a person convicted of assault with intent to commit a violent felony also must serve a two year period of parole. (Parole is very similar to probation, which is described below.) While on parole, the convicted person is out of prison but under the supervision of a parole board, and must obey all laws, become employed, and possibly report in to a parole officer on a regular basis. If the person violates any conditions of parole, the person can be arrested and required to serve out the remainder of the parole period in prison. A person on parole is required to pay the expenses of parole and to reimburse any party that paid a reward for information leading to the offender’s arrest, prosecution or conviction.

(N.M. Stat. Ann. § 31-21-10.)

Probation

The court can impose probation instead of time in prison for the entire sentence or for a period after the person convicted has served some time in prison. For instance, a judge can order one year in prison and two years’ probation. A person on probation must meet regularly with a probation officer and comply with conditions set by the court, such as no further arrests or convictions, attending counseling, community service, and electronic home detention, commonly referred to as “house arrest.” Under electronic home detention, the person wears an electronic monitoring device or “ankle bracelet” and usually is restricted to home and work. If a person violates a condition of probation, he can be arrested and required to serve the remainder of his probation or a remaining part of his sentence in jail or prison.

(N.M. Stat. Ann. § 31-20-5.)

Conditional discharge

Short of a dismissal or being found not guilty, a conditional discharge would be an excellent but unusual outcome for a defendant facing the charge of assault with intent to commit a violent felony. If the court gives a conditional discharge, the judge will impose conditions on the defendant, such as probation with counseling and no further arrests or convictions. If the defendant satisfies all the conditions, the charges will be dismissed at the end of the conditional discharge period and the defendant will have no conviction on his record. A conditional discharge is not often granted in felony cases, particularly in cases involving violence, except in unusual circumstances, such as questionable police conduct or an explanation that explains the conduct but does not rise to the level of a legitimate defense.

(N.M. Stat. Ann. § 31-20-13.)

Restitution

If a person convicted of assault with intent to commit a violent felony is not required to serve the maximum prison term, the person must still pay restitution. This involves reimbursing the victim for any expenses resulting from the crime, such as the cost of medical treatment or counseling.

(N.M. Stat. Ann. § 31-17-1.)

Consequences of a Conviction

A third degree felony is the least serious of felony convictions, but is still a serious offense with significant consequences. A convicted felon loses the right to vote, hold public office, serve as a juror, and carry or own firearms. A convicted felon also can lose a professional license in certain circumstances. Felons who face criminal charges later may find that the new charges are more serious because of their prior conviction(s).

Getting Professional Help

Because a conviction for a felony has such serious, permanent consequences and becomes part of your criminal record, having an experienced criminal defense attorney represent you is essential. An attorney can investigate the case and determine if you were wrongfully charged or there are other reasons why the case should be dismissed before a trial.

If the charges are not dismissed, prosecutors often will negotiate and agree to a lighter sentence, such as probation or a conditional discharge, in exchange for a plea of guilty to the original charge. Or, they may reduce the charge to a different, less serious crime, to which the defendant can plead guilty. Whether you enter into a plea agreement or go to trial, an experienced attorney can protect your rights.

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