The charge of NY Gang Assault requires intentionally causing serious physical injury with the help of two or more people. There are two New York Gang Assault charges. Specifically, they are:
- NY Gang Assault in the Second Degree (New York PL 120.06)
- NY Gang Assault in the First Degree (NY PL 120.07)
Difference between these two charges is explained below.
NY Gang Assault in the Second Degree (PL 120.06)
Under Penal Law Section 120.06, a person is guilty of Gang Assault in the Second Degree when:
- With intent to cause physical injury to another person, AND
- Aided by two or more other persons actually present, AND
- He causes serious physical injury to such person or to a third person.
Definitions Used in NY Gang Assault Charges
Under New York Penal Law, terms like “intent,” “physical injury,” and “serious physical injury” all have special meaning. Rather than allow the jurors use their own interpretation of these terms, there are legal definitions for these terms that the jurors must follow.
What is Intent Under NY Law?
The legal definition of intent is a conscious objective or purpose. Thus, a person acts with intent to cause physical injury to another when that person’s conscious objective or purpose is to cause physical injury to another.
Intent, unlike the physical act of say punching someone isn’t something that can be seen. Rather, intent can be inferred from the physical action. That is to say, if you swing at someone with a closed fist, it can be inferred that your intent is to cause physical injury to that person.
What is Physical Injury under NY Law?
The legal definition of physical injury means impairment of physical condition or substantial pain. Impairment, however slight is considered to be physical injury. So even if the complaining victim sustains a mark or a small bruise, that is enough for physical injury.
The term substantial pain does not have a definition in the penal law, but the Courts have interpreted this term to mean that substantial pain is any pain that is more than slight or trivial. Importantly, complainant’s medical records are not required by law to prove physical injury. A complainant is able to testify about the pain and injuries that they have experienced. Frequently, at trial the prosecutor will seek to admit into evidence photos of the complainant’s injuries or EMS treatment records.
What is Serious Physical Injury under NY Law?
Under New York Law, serious physical injury means impairment of a person’s physical condition which:
- Creates a substantial risk of death, OR
- Which causes death, OR
- Causes serious and protracted disfigurement, OR
- Causes protracted impairment of health or protracted loss or impairment of the function of any bodily organ.
New York Legal Theory of Transferred Intent
New York also has a legal theory called transferred intent. Under transferred intent theory, it is not required that the person who is injured is the person who the defendant intended to injure. For example, if A swings a closed fist at B, but B ducks and A accidentally hits C, A can be prosecuted for Assault in the Third Degree for punching C, even though A’s intent was to cause physical injury to B.
What is the Legal Definition of Actually Present under New York Law?
The legal definition of a person being actually present is when such person is in a position to render immediate assistance to a person participating in the assault and is ready, willing and able to do so. So if A, B, and C all show up to fight D and are in a position to help each other out in fighting D, then then A,B, and C would all be actually present for the purposes of Gang Assault charges.
Let’s say, however A and B go to fight D, and C stays home, but C was the one who invited D to the location of the fight. A, B, and C cannot be charged with Gang Assault because C was not actually present at the location and was not ready, willing and able to help A and B in the fight.
Penalties and Sentencing on NY Gang Assault in the Second Degree
Gang Assault in the Second Degree is a Class C Violent Felony. As such, this charge is punishable by 3.5 to 15 years in prison. Probation, conditional discharge or a determinate sentence of one year or less are not possible on NY Gang Assault in the Second Degree.
NY Gang Assault in the First Degree (PL 120.07)
The difference between the two New York Gang Assault charges involves the intent that the individual has. New York Gang Assault in the Second Degree requires the intent to cause physical injury, while New York Gang Assault in the First Degree requires the intent to cause serious physical injury.
Once again, intent is not something that you can physically see, but it can be inferred from someone’s actions. The difference in the intent between those two charges will depend on the circumstances of the offense. For example, if Gang Assault involves just fists, no weapons and no serious injuries, then the intent is likely to cause physical injury. However, if the Gang Assault involves weapons, like knives or guns, and serious injuries to the complaining witness, then the intent is likely to cause serious physical injury.
A person is guilty of Gang Assault in the First Degree when:
- With intent to cause serious physical injury to another person AND
- When aided by two or more other persons actually present, AND
- Causes serious physical injury to such person or to a third person.
Penalties and Sentencing on NY Gang Assault in the First Degree
Gang Assault in the First Degree is a Class B Violent Felony. As such, this charge is punishable by 5 to 25 years in prison. Similarly to New York Gang Assault charges in the Second Degree, this charge is not eligible for probation, a conditional discharge or a determinate sentence of one year or less.
Common Defenses to New York Gang Assault Charges
One of the possible defenses to the charges of New York Gang assault is the mere presence defense. Under this legal theory, a person cannot be prosecuted for a crime if all they did was be at the location where a crime happened. For example, let’s say A goes with B, C, and D to the store and they run into E. If B, C, and D beat up E, and all that A did was come to the store with them, then A cannot be prosecuted for gang assault because of the mere presence defense.
Lack of Intent
Another requirement of Gang Assault Charges is that your conduct must be intentional, rather than reckless or negligent. Meaning, that you deliberately cause physical or serious physical injury. If an individual sustains physical or serious physical injury as a result of conduct which was not intentional, then individuals cannot be charged with Gang Assault.
Contact Top Rated Gang Assault Criminal Defense Attorneys
If you have been contacted by the police or arrested for NY Gang Assault charges, you need excellent legal representation. New York Gang Assault cases are taken seriously by the District Attorney’s Offices and can result in felony convictions and up to 25 years in prison. Just because you are charged with Gang Assault doesn’t mean that there aren’t ways to get the case dismissed or the charges reduced. Call us at 212-729-9494 or contact us today for your free initial consultation to find out if we are the right firm for you.