New York Assault Criminal Charges
Types of New York Assault Criminal Charges
New York Assault criminal charges involve causing physical injury to another person. New York Assault Criminal Charges are included in the Penal Law Section 120. Specifically, there are are three degrees of assault ranging from Third Degree (least serious) to First Degree (most serious). Generally, these charges differ based on the severity of the injuries and the circumstances of the offense. It is important to consult an experienced criminal defense attorney regarding your Assault matter.
Third Degree Assault
New York’s Assault in the Third Degree statute is located in Penal Law Section 120.00. The charge has different sub-sections, each having a different required mental state as explained below:
Elements of New York Assault in the Third Degree
1. With intent to cause physical injury to another person, causing such injury to such person or to a third person; or
Under New York's Criminal Procedure Law, Section 10: physical injury is "impairment of physical condition or substantial pain."
2. He recklessly causing physical injury to another person; or
It is important to realize that Section 15 of the Criminal Procedure Law states that a person acts "Recklessly" with respect to a result or circumstance when: "he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."
3. With criminal negligence, he causing physical injury to another person.
Assault in the Third Degree is a Class A misdemeanor. Accordingly, it can be punishable by up to one year in jail. More often than not, these cases resolve themselves without any jail time.
What is Attempted Assault?
Attempted Assault is exactly like what it sounds – attempt to cause physical injury and an act in furtherance of that attempt. Importantly, physical contact in not a requirement of an assault.
An attempt is when a person (1) has the attempt to commit a crime and (2) engages in conduct which tends to effect the commission of such crime. Attempted crimes are one degree lower than fully completed crimes.
For example, swinging with a fist and missing is Attempted Assault. Because punching someone and causing physical injury, is a Class “A” Misdemeanor, trying to punch someone and missing is a Class “B” Misdemeanor.
Third Degree Assault and Attempted Assault Penalties
Assault in the Third Degree is a Class “A” Misdemeanor. As such it is punishable by up to one year jail. Attempted Assault in the Third Degree is a Class “B” Misdemeanor.” As such, the maximum penalty is 60 years jail.
The ultimate resolution of the case usually depends on the extent of injuries, client’s criminal record as well as the circumstances of the case. Oftentimes, these cases can be resolved without any jail time. In some situations, your attorney is able to obtain a non-criminal disposition for you, that would not permanently stay on your record. These non-criminal resolutions are either “violations” or “adjournments in contemplation of dismissal.”
Second Degree Assault
New York’s Assault in the Second Degree statute is located in Penal Law Section 120.05. Under New York Law, there are fourteen different types of Assault in the Second Degree.
Different Types of Assault in the Second Degree
1. Serious Physical Injury – Penal Law 120.05(1)
The following elements are requires for Assault in the Second Degree under New York Penal Law Section 120.05(1):
- Intent to cause serious physical injury, AND
- Causing such injury to such person or a third person.
What is Serious Physical Injury?
The definition comes from Penal Law Section 10.00. Specifically, serious physical injury means physical injury which creates a substantial risk of death, or which causes death or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.
2. Physical Injury With Weapon – Penal Law 120.05(2)
Similarly, under New York Penal Law 120.05(2), the following elements are required for Assault in the Second Degree:
- Intent to cause physical injury, AND
- Causing such injury to such person or a third person, AND
- By using weapon.
3. Physical Injury to Law Enforcement or Healthcare Provider Doing Their Job – Penal Law 120.05(3)
These are the elements of Assault in the Second Degree, under New York Penal Law 120.05(3):
- Physical Injury, TO
- Individual in a qualified job, WHILE
- For example, this includes: peace officer, police officer, prosecutors nurses, public health workers, firefighters, firefighters acting as paramedics, school crossing guard, traffic agent, prosecutor,
- performing their job or legal duty.
Surprisingly, there is no intent requirement under 120.05(3). Hence, a person doesn’t need to intentionally, recklessly or negligently cause the injury. Rather, any mens rea is enough.
4. Reckless Physical Injury With a Weapon
Unlike the previous Assault 2 provisions, Penal Law 120.05(4) requires a reckless, rather than an intentional mental state.
The following are the elements of New York Penal Law 120.05(4):
- Recklessly (as shown above);
- Causes serious physical injury;
- To another person;
- By means of a deadly weapon or a dangerous instrument.
Specifically, under NY Penal Law Article 10, Section 12, a "Deadly Weapon" is any loaded weapon capable of firing a shot, a switchblade knife, a gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles. Additionally, under Section 13 of NY Penal Law Article 10, a "Dangerous Instrument" is any instrument, article or substance, including a vehicle, which, under the circumstances in which it is used or threatened to be used, is readily capable of causing death or other serious physical injury.
5. Unlawful Administration of Drugs Causing Physical Impairment
Penal Law 120.05(5) prohibits giving someone a drug or substance causing physical impairment or injury. Specifically, this provision applies to purposes other than lawful medical or therapeutic treatment.
The elements are:
- Purpose other than medical or therapeutic treatment,
- Causing stupor, unconsciousness, or other physical impairment to another person,
- By administering to him without consent,
- A drug, substance or preparation capable of producing the same.
For example, this charge would apply in a situation where an individual roofies someone’s drink at the bar, causing that person to lose consciousness. Frequently, this charge is often coupled with sexual assault charges.
6. Assault in Commission of a Felony
There is a separate Assault 2 charge, under Penal Law 120.05(6) for situations where an Assault happens during the commission of another felony. Once again, a felony is any crime punishable by more than one year in prison. Importantly, there is no required mental state for this charge. Therefore, committing an assault intentionally, recklessly or negligently qualifies.
The following are the elements of Assault 2 in the Second Degree during a commission of a felony:
- In the course of and in furtherance of the commission of a felony (with the exception of sex offenses from Penal Law 130, that require corroboration for a conviction),
- Or of immediate flight therefrom;
- The individual or another participant causes physical injury,
- To a person other than one of the participants.
7. Assault in a Correctional Facility
Penal Law 120.05(7), makes it a felony for an inmate inside a correctional facility to commit assault. Otherwise, absent this statute, this conduct would be a misdemeanor. Specifically, the elements of this charge are:
- Having been charged with or convicted of a crime, AND
- While confined in a correctional facility,
- With intent to cause physical injury to another person,
- He causes such injury to such person or to a third person.
8. Recklessly Causing Injury to a Child Under Age 11
There are four elements of Assault in the Second Degree (Penal Law 120.05(8)), which prohibits recklessly causing injury to a child under age 11. Specifically, they are:
- Being eighteen years old or more, AND
- With intent to cause physical injury to a person less than eleven years old,
- Recklessly causes serious physical injury to such person.
9. Intentionally Causing Injury to a Child Under Age 7
Similarly, Penal Law Section 120.05(9) prohibits intentionally causing physical inquiry to a child less than seven years old. The elements of this charge are:
- Being eighteen years old or more, AND
- With intent to cause physical injury, AND
- To a person less than seven years old, AND
- Causing such injury to such person. AND
10. School Grounds Assault
Under Penal Law 120.05(10), assault on school grounds is a felony, regardless of the extent of the injuries. Specifically, the elements of this charge are:
- In a place that a person knows or should know is a school,
- With intent to cause physical injury,
- Causes injury to an employee of the school, OR
- Not being a student of the school, causes injury to a student of the school.
Importantly, the definition of "school" or "school grounds" does from Penal Law Section 220, which is the Controlled Substances Section. Under Penal Law 220.00(14), school grounds includes: all buildings, structures, athletic playing fields, playground or land or a public or private school. As well as any area accessible to the public within 1000 feet of the school.
11. Assault on Train Workers, Traffic Agents and Medical Personnel
The elements of this Assault charge under Penal Law 120.05(11) are:
- With intent to cause physical injury,
- Causes physical injury,
- To an individual who is employed in a capacity protected by this statute,
- While such employee is performing an assigned duty in the course of their employment.
Specifically, the following types of employees are protected by Penal Law 120.05(11):
- Train operators, ticket inspectors, train conductors, signal persons, bus operators, station agents, station cleaners or terminal cleaners;
- City marshals, school crossing guards, traffic enforcement officers, traffic enforcement agents, prosecutors, sanitation enforcement agents, New York City sanitation workers;
- Registered nurses, licensed practical nurses, emergency medical service paramedics, or emergency medical service technicians.
12. Assault on Individuals Over Age 65
Penal Law Section Section 120.05(12), codifies Assault in the Second Degree. Specifically, it is a felony to cause any physical injury to an individual who is over 65 years old, when you are 10 years younger than the injured party. Specifically, the elements of Penal Law Section 120.05(12), are:
- Intent to cause physical injury
- To a person who is sixty-five years of age or older,
- Causing such injury to such person, AND
- The actor is more than ten years younger than such person.
Importantly, it is not a defense if the actor does not know the age of the victim at the time the assault is committed.
13. Mental Health Facility Assault
Assault in the Second Degree under Penal Law Section 120.05(13), has the following elements:
- Being confined to a secure mental health treatment facility, AND
- With intent to cause physical injury to an employee of such secure treatment facility performing his or her duties,
- Causing such injury to such person.
14. Assault on Process Servers
Penal Law Section 120.05(14) criminalizes Assault on Process Servers. The definition of the process server comes from the General Business Law Section 89-t. Specifically, the definition is: a person other than an attorney or a party to an action acting on his own behalf who:
(a) derives income from the service of papers in an action; OR
(b) has effected service of process in five or more actions or proceedings in the twelve month period immediately preceding the service in question.
Elements of Assault in the Second Degree Against Process Servers
These are the elements of Assault in the Second Degree Against Process Servers under Penal Law Section 120.05(14):
- Intent to prevent or obstruct a process server from performing a lawful duty, OR
- Intentionally, as retaliation against such a process server for the performance of the process server’s duties,
- Causing physical injury to such process server.
Second Degree Assault: Available Sentences
Above-described charges of Assault in the Second Degree are Class “D” violent felonies. Therefore, all of these charges are punishable by up to 7 years in jail. However, sentences of probation, conditional discharge, and split sentences are available for Assault in the Second Degree charges.
First Degree Assault
New York’s Assault in the First Degree statute is located in Penal Law Section 120.10. There are four different types of Assault in the First Degree. Specifically, they are:
- Causing Serious Physical Injury by Means of a Weapon or a Dangerous Instruments (Penal Law Section 120.10(1));
- Intent to Disfigure, Amputate or Disfigure Another Person and Causing Such Injury (Penal Law 120.10(2));
- Recklessly Engaging in Conduct Which Creates a Grave Risk of Death to Another Person and Casing Serious Physical Injury (Penal Law 120.10(3))
- In the course and furtherance of a commission of a felony, causing serious physical injury to another person.
Penalties Associated with First Degree Assault
First Degree Assault is a Class “B” Violent Felony. Therefore, it is one of the most serious criminal charges in the State of New York. Assault in the First Degree is punishable by five (5) to twenty five (25) years in prison. Thus, it is essential for you to retain an experienced criminal defense attorney to defend your case.
Defenses to New York Assault Charges
These are some common defenses to Assault Charges in the State of New York.
Justification is an affirmative defense. Thus, the burden of proof is on the defense and not on the prosecution. For example, these situations allow for a use of reasonable physical force on another and are not criminal when conduct is:
- Authorized by law or performed by public servant in reasonable exercises of his or her official duties;
- Necessary as an emergency measure to prevent public or private injury;
- Reasonably necessary to promote the welfare or safety of an individual under 21 years old or a mentally incompetent person;
- Authorized by the Correction Law and done by warden or other authorized official to maintain order and discipline in a corrections facility;
- Reasonably believed to prevent a suicide or infliction of injury;
- Performed by a physician for the purpose of performing a recognized form of treatment that is reasonably believed to promote physical or mental health of the patient;
- Self Defense;
- Defense of a Third Party;
- Needed to prevent larceny or criminal mischief of a property.
Lack of Intent
Another common defense on Assault cases is proving that the individual did not have the necessary intent to commit assault. For example, if the prosecutor charged someone with Intentional Assault, however the conduct was reckless, the intentional assault charge may be dismissed.
Extent of Injuries
As described above, “physical injury,” and “serious physical injury” have very specific definitions. Your attorney is able to obtain a copy of the victim’s hospital and medical treatment records and review them. If the records don’t show what would constitute “physical injury” or “serious physical injury,” your attorney is able to make a motion to dismiss those charges.
For example, let’s say someone is charged with Assault in the Second Degree for punching someone (no weapon used), but the injury is described as pain and swelling to the face. Based on the review of the medical records, the charge of Assault in the Second Degree is excessive. Therefore, an attorney is able to make a motion to dismiss the charge of Assault in the Second Degree. The appropriate charge under these circumstances would be Assault in the Third Degree.
Contact a New York Assault Criminal Defense Attorney
In New York, consequences of a conviction for an Assault charge can be severe. Oftentimes, especially on the felony Assault charges, there is a real possibility that the resolution of the case will involve jail time. Please call us at 212-729-9494 or contact us today to schedule your appointment. We will assess all strengths and weaknesses of your case. Together, we will develop a case strategy that will minimize your criminal exposure and collateral consequences.