Assault on Police Officer Charges Explained

New York has three different Assault on Police Officer or Peace Officer Charges. Generally speaking, these charges require a physical injury to the Police Officer or Peace Officer, while in the course of performance of a lawful police duty. These three New York Assault on Police Officer or Peace Officer charges are:

Importantly, the New York Crimes involving Assault on Police Officers or Peace Officers are strict liability. Meaning, that you do not have to have a specific mental state. Your conduct does not need to be intentional, negligent or reckless. In New York, you can be criminally charged for Assaulting a Police Officer or a Peace Officer, even if the injury to the police officer happens accidentally. However, the prosecutor is required to prove that you were intentionally trying to prevent the officer from performing a lawful duty.

Assault in the Second Degree: Assault on a Police Officer (PL 120.05)

New York Penal Section 120.05 contains twelve subsections, all of which are different New York Assault in the Second Degree Charges. Penal Law Section 120.05(3) applies to Assault on a Police Officer or a Peace Officer (as well as several other employment categories).

What is a Peace Officer under New York Law?

The definition of individuals who are considered to be Peace Officers in the State of New York is located in Article 2 of the New York Criminal Procedure Law. It contains 84 different categories of people who are considered to be peace officers in New York State.

Enhanced Penalties for Assault on a Peace Officer Explained

Assaulting anyone with peace officer status as set forth in CPL Article 2.10 may subject you to being charged with a more serious crime. For example, let’s say you punch your neighbor in a dispute over your dog, without any serious injury. The charge in that situation would be Assault in the Third Degree. That is a Class “A” Misdemeanor punishable by up to 1 year in prison.

However, let’s say you punch a member of the ASPCA (who has peace officer status under CPL 2.10(7)) in an identical dispute over your dog. Also, without causing any serious injury. Because the member of the ASPCA is a peace officer, who you assaulted in the performance of his duties, the charge then becomes Assault in the Second Degree, which is a Class “D” Violent Felony. This charge is punishable by up to 2 to 7 years in prison.

Elements of Penal Law 120.05(3): Assault on a Police Officer or a Peace Officer

Under New York Penal Law Section 120.05(3), a person is guilty of Assault on a Police Officer or a Peace Officer (Assault in the Second Degree) when:

  1. With intent to prevent a peace officer, or a police officer,
  2. From performing a lawful duty,
  3. Causes physical injury to such peace officer or police officer.*

*Note: Penal Law Section 120.05(3) applies to many other professions such as:

  • Prosecutors
  • Sanitation Workers
  • Firefighters
  • Paramedics
  • City Marshalls
  • School Crossing Guard

What Is Considered A Lawful Duty?

There is no legal definition of what is considered a “lawful duty” under the New York Penal Law. However, the following are examples provided in the Jury Instructions of what is considered to be a “lawful duty:”

(1) Detain a person when the officer has reasonable suspicion to believe that a person has or is engaged in the commission of a crime;

(2) Arrest a person when the officer has reasonable cause to believe that a person has or is engaged in the commission of a crime’

(3) Stop an automobile for which the officer has reasonable suspicion to believe an occupant or occupants is or has engaged in unlawful activity, including a violation of the vehicle and traffic law.

The Courts have held whether the police officers could have made a lawful arrest is a separate question, that does not apply to the determination of whether the police were engaging in a lawful duty.

Penalties and Sentencing for Assault in the Second Degree

Assault in the Second Degree is a Class “D” Violent Felony. As such, this Assault on a Police Officer or a Peace Officer is punishable by 2 to 7 years in prison. However, if there are mitigating circumstances, this charge can be punishable by probation or a determinate sentence of one year or less.

Assault on a Police Officer (PL 120.08)

Another New York Assault on a Police Officer or a Peace Officer charge is codified in Penal Law Section 120.08. This charge is different from Assault on a Police Officer or a Peace Officer under Penal Law Section 120.05, in that this Assault on a Police Officer charge requires “serious physical injury,” while Assault in the Second Degree just requires “physical injury.”

What is the Difference Between Physical Injury and Serious Physical Injury?

The definitions of both “physical injury” and “serious physical injury” are located in Article 10 of the New York Penal Law.

  • Physical Injury is defined as “impairment of physical condition or substantial pain.”
  • Serious Physical Injury is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” There is no requirement that serious physical injury be life-threatening.

Examples of Serious Physical Injury Under New York Law:

New York Courts have held the following to be serious physical injury:

  • Significant loss of blood, petechial hemorrhages in her eyes, surgery on her neck that left a significant and visible scar, and three day hospitalization;
  • Significant damage to the musculature in both thighs, resulting in permanent complications, including a limp, weakness, loss of stamina, and pain years later after sustaining the injury;
  • Permanent loss of the range of motion of head and seriously disfiguring scars as a result of being slashed by a razor.

Medical Records Are Usually Required to Determine Extent of Injury for Assault on Police Officer Charges

While scrapes, bruises and lacerations are likely to constitute physical injury, anything requiring major surgery (i.e. gunshot wound or stab wound) is likely to constitute serious physical injury. In practice, the review of the complaining witness’ medical records is necessary to determine whether the injury sustained was a “physical injury” or if it rose to the level of “serious physical injury.”

Elements of Assault on a Police Officer under Penal Law 120.08

Under New York Pena Law Section 120.08, a person is guilty of Assault on a Police Officer or a Peace Officer when:

  1. With intent to prevent a peace officer or a police officer from performing a lawful duty,
  2. He causes serious physical injury to such peace officer or a police officer.

Penalties and Sentencing for Assault on a Police Officer

This Assault on Police Officer or Peace Officer charge, under Penal Law 120.08 is a Class “C” Violent Felony. As such, this charge is punishable by 5 to 15 years in prison. Probation is not an authorized sentence on this Assault on a Police Officer charge.

Aggravated Assault on Police Officer or Peace Officer (PL 120.11)

The third New York Assault on Police Officer or Peace Officer charge is Aggravated Assault on a Police Officer or a Peace Officer under New York Penal Law Section 120.11. This charge requires that (1) the police officer sustain a serious physical injury and (2) such injury was caused by means of a deadly weapon or dangerous instrument.

Elements of Aggravated Assault on Police Officer or Peace Officer (PL 120.11)

Under New York Penal Law 120.11, Aggravated Assault on a Police Officer or a Peace Officer has the following elements:

  1. Intent to Cause Serious Physical Injury
  2. To a person whom the actor knows or should know to be a Police Officer or a Peace Officer
  3. Engaged in the course of performing his official duties
  4. Causes such injury by means of a deadly weapon or a dangerous instrument.

Charging Aggravated Assault on a Police Officer or a Peace Officer Based on Another’s Conduct

Under New York Law, you can be charged with Aggravated Assault on a Police Officer or a Peace Officer under New York Penal Law 120.11 based on the conduct of another individual. Meaning, if you are not the person who causes injury to the police officer or a peace officer, you can still be charged with Aggravated Assault on a Police Officer or a Peace Officer. That is based on the conduct of another. So long as you were acting in concert with the other individual.

Example of Acting in Concert for the Purposes of Aggravated Assault on a Police Officer or a Peace Officer:

In a 1993 case called People of the State of New York v. Clark, New York Appellate Court upheld an Aggravated Assault on a Police Officer or a Peace Officer under Penal Law 120.11, when it was the co-defendant who fired a weapon at the officer, and not the defendant. Because the evidence showed that the two were acting in concert with one another.

Penalties and Sentencing for Aggravated Assault on a Police Officer or a Peace Officer

New York Aggravated Assault on Police officer or Peace Officer is a Class “B” Violent Felony. As such, this charge is punishable by 5 to 25 years in prison. Probationary sentence or a jail term of less than 5 years is not permissible.

Potential Defenses to New York Assault on Police Officer Charges

Extent of Injury

A potential defense to New York Assault on a Police Officer charges is the extent of injury. Both physical injury and serious physical injury have specific legal definitions. As such, in order for the jury to find someone guilty of Assault on a Police Officer or a Peace Officer charge, the injuries sustained by the officer need to be legally sufficient for each charge. A careful review of EMS or medical records may prove that such injuries fall short of the legal requirement.

Course of Lawful Duty

One of the defenses to Assault on Police Officer charges is that the officer was not performing a lawful duty. The defense will need to make a showing to the jury that his or her arrest or seizure was unlawful. This is based on 1998 New York Case called People of the State of New York v. Millhouse. However, violations of police procedure by the officers is not enough to establish that the officer was not acting in a lawful duty. That is because police procedures do not carry the force of law. (People of the State of New York v. Hollis).

Justification

Another potential defense to Assault on Police Officer Charges is justification. A justification defense provides that although you may have assaulted a peace officer or a police officer, your conduct was in self defense and was thus justified. When evidence exists that you were a victim of an unprovoked police assault or were subjected to excessive physical force in making the arrest you may have a defense that your acts were in self defense and thus are justifiable.

Contact Top Rated New York Attorneys Today

If you have been arrested for Assault on a Police Officer or a Peace Officer, you need experienced counsel. There are many defenses to the charges of Assaulting a Police Officer or a Peace Officer in New York, which need to be explored, investigated and developed. Contact us today to schedule a consultation regarding your case.