Assault

Assault is defined by New York law as causing an injury to another person. It is codified in Article 120 of the New York Penal Code. If you find yourself under investigation or under arrest for accusations relating to Assault, it is imperative that you contact an experienced New York City Assault crime lawyer immediately. There are multiple defenses to assault including the defense of justification or self-defense. The complicated law of self-defense is codified in New York Penal Code section 35.00.

There are three levels of Assault. The potential sanctions associated with assault and what the government needs to prove to sustain a conviction are listed below.

  • Assault in the First Degree
Assault in the First Degree is codified in Penal Code Section 120.10. As a class B violent felony, Assault in the First Degree is the most serious kind of assault charge. In fact, it is among the most serious charges in the New York Penal Code. The best way to conceptualize the seriousness of the charge is to think of it as a situation in which the only reason the perpetrator of the Assault in the First Degree isn’t charged with Murder is because the victim of the assault luckily didn’t die. Another way to conceptualize it is to understand that often times the District Attorney’s Office charges Assault in the First Degree in conjunction with Attempted Murder charges. Examples of Assault in the First Degree are situations where a person stabs another in the chest or even shoots him in the chest with a gun, but the person luckily survives.

If a person with no prior felony convictions is convicted of this crime, the minimum period of incarceration is 5 years and the maximum is 25 years. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 8 years and the maximum is 25 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 10 years and the maximum period is 25 years. In all circumstances, the person is forced to be on parole between 2.5 to 5 years.

There are four subsections of Assault in the First Degree.

120.10(1)

For the government to sustain a conviction for Assault in the First Degree (subsection 1), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:
  1. the person caused serious physical injury to another person by means of either a dangerous instrument or a deadly weapon; and
  2. the person did with the intent to cause serious physical injury.
120.10(2)
For the government to sustain a conviction for Assault in the First Degree (subsection 2), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:
  1. the person seriously and permanently disfigured another person, or destroyed, amputated, or disabled permanently a member or organ of that person's body; and
  2. the person did so with the intent to disfigure seriously and permanently, or to destroy, amputate, or disable permanently a member or organ of that person's body.

120.10(3)
For the government to sustain a conviction for Assault in the First Degree (subsection 3), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person caused serious physical injury to another person;
  2. the person did so by recklessly engaging conduct which created a grave risk of death; and
  3. the person engaged in such conduct under circumstances evincing a depraved indifference to human life.

120.10(4)
For the government to sustain a conviction for Assault in the First Degree (subsection 4), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:

  1. the person either committed or attempted to commit a designated felony; and
  2. in the course of and in furtherance of the commission or attempted commission of that felony, the person, or another participant in that crime, caused serious physical injury to a non-participant in the crime.


  • Assault in the Second Degree
Assault in the Second Degree is codified in New York Penal Code Section 120.05. It is a class D violent felony. If a person with no prior felony convictions is convicted of this crime, the minimum period of incarceration is usually a six-month prison sentence to be followed by a term of five years probation and the maximum is 7 years in prison. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 3 years and the maximum is 7 years. If the person has been previously convicted of a violent felony within the past 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 5 years and the maximum period is 7 years. If a person has prior felony convictions, he must serve 5 years parole after his sentence is over. If the person has no prior felonies, he must serve 1.5-3 years on parole.

Assault in the Second Degree has 12 subsections:

120.05(1)
For the government to sustain a conviction for Assault in the Second Degree (subsection 1), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:
  1. the person caused serious physical injury to another person; and
  2. the person did with the intent to cause serious physical injury.
120.05(2)
For the government to sustain a conviction for Assault in the Second Degree (subsection 2), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:
  1. the person caused physical injury to another person by means of either a deadly weapon or a dangerous instrument; and
  2. the person did so with the intent to cause physical injury

120.05(3)
For the government to sustain a conviction for Assault in the Second Degree (subsection 3), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person caused physical injury to a peace officer, police officer, registered nurse, licensed practical nurse, sanitation enforcement agent, New York city sanitation worker, firefighter, emergency medical service paramedic, emergency medical service technician, medical or related personnel in a hospital emergency department, city marshal, traffic enforcement agent, or traffic enforcement officer;
  2. the person to whom the injury was caused, was in fact one of the above-professions; and
  3. the person caused physical injury to that person with the intent of preventing them from performing a lawful duty.

120.05(4)
For the government to sustain a conviction for Assault in the Second Degree (subsection 4), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:

  1. the person caused serious physical injury by means of a dangerous instrument or deadly weapon; and
  2. the person did so recklessly.

120.05(5)
For the government to sustain a conviction for Assault in the Second Degree (subsection 5), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person intentionally caused stupor, unconsciousness, or other physical impairment or injury to another person;
  2. the person did so by administering a drug, substance, or preparation capable of causing stupor, unconsciousness, or other physical impairment or injury to another person without that person's consent; and
  3. the person did so for a purpose other than lawful medical or therapeutic treatment.

120.05(6)
For the government to sustain a conviction for Assault in the Second Degree (subsection 6), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:

  1. the person either committed or attempted to commit a designated felony; and
  2. in the course of and in furtherance of the commission or attempted commission of that felony, the person, or another participant in that crime, caused physical injury to a non-participant in the crime.

120.05(7)
For the government to sustain a conviction for Assault in the Second Degree (subsection 7), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person caused physical injury to another person;
  2. the person did so with the intent to cause physical injury; and
  3. at such time, the person (who caused the injury) was charged with a crime and was confined in a correctional facility.

120.05(8)
For the government to sustain a conviction for Assault in the Second Degree (subsection 8), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person recklessly caused serious physical injury to a child who is less than 11 years old;
  2. the person did so with the intent to cause physical injury to the child; and
  3. the person who caused the injury was 18 years old or more.

120.05(9)
For the government to sustain a conviction for Assault in the Second Degree (subsection 9), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person caused physical injury to a child who is less than 7 years old;
  2. the person did so with the intent to cause physical injury to the child; and
  3. the person who caused the injury was 18 years old or more.

120.05(10)(a)
For the government to sustain a conviction for Assault in the Second Degree (subsection 10a), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person caused physical injury to another person who was employee of a school or public school district;
  2. the person did so with the intent to cause physical injury to the other person; and
  3. the person did so on school grounds and and the person who reasonably should have known that he was on school grounds.

120.05(10)(b)
For the government to sustain a conviction for Assault in the Second Degree (subsection 10b), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. the person caused physical injury to another person who was a student of such school who was attending or present for educational purposes;
  2. the person did so with the intent to cause physical injury to the other person; and
  3. the person did so on school grounds and and the person who reasonably should have known that he was on school grounds.

120.05(11)
For the government to sustain a conviction for Assault in the Second Degree (subsection 11), the government needs to prove the following three elements beyond a reasonable doubt. The government needs to prove:

  1. a person caused physical injury to another person;
  2. the other person who was injured was a train operator, ticket inspector, conductor, signalperson, bus operator or station agent employed by an transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions, or a city marshal, traffic enforcement officer, traffic enforcement agent, sanitation enforcement agent, New York city sanitation worker, or a registered nurse or licensed practical nurse; and
  3. the incident occurred while the injured person was performing an assigned duty.

120.05(12)
For the government to sustain a conviction for Assault in the Second Degree (subsection 12), the government needs to prove the following four elements beyond a reasonable doubt. The government needs to prove:

  1. the person caused physical injury to another person;
  2. the person did so with the intent to cause physical injury to the other person;
  3. at the time the person injured was 65 years or older; and
  4. the person who caused the injury was more than 10 years younger than the person injured.


  • Assault in the Third Degree
Assault in the Third Degree is codified in New York Penal Code Section 120.00. It is a class A misdemeanor punishable up to 1 year in jail. Assault in the Third Degree is the most common assault arrest charge in New York.

Assault in the Third Degree has 3 subsections.

120.00(1)

For the government to sustain a conviction for Assault in the Third Degree (subsection 1), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:
  1. the person caused physical injury to another person; and
  2. the person did so with the intent to cause physical injury.

120.00(2)

For the government to sustain a conviction for Assault in the Third Degree (subsection 2), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:
  1. the person caused physical injury to another person; and
  2. the person did so recklessly.


120.00(3)

For the government to sustain a conviction for Assault in the Third Degree (subsection 3), the government needs to prove the following two elements beyond a reasonable doubt. The government needs to prove:

  1. the person caused physical injury to another person by means of a dangerous instrument or deadly weapon; and
  2. the person did so with criminal negligence.

Some of the terms listed above carry specific legal definitions. They are listed below.

"Serious Physical Injury" means impairment of a person's physical condition which creates a substantial risk of death, or which causes death, or serious and protracted disfigurement, or protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

"Physical Injury" means impairment of a person's physical condition or substantial pain.

"Dangerous Instrument" means any instrument, article, or substance, including a vehicle, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or other serious physical injury.

"Deadly Weapon" means any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife. gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, or metal knuckles.

A person acts "recklessly" when that person engages in conduct which creates or contributes to a substantial and unjustifiable risk that physical injury to another person will occur, and when he is aware of and consciously disregards that risk, and when that risk is of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation. Moreover, where there is evidence of voluntary intoxication on the part of the person, he also acts recklessly when he creates such a risk even if he is unaware of that risk solely by reason of his voluntary intoxication.

"Criminal Negligence" requires a showing of appreciably more serious negligence than that for a civil recovery. A person acts with "Criminal Negligence with respect to physical injury by means of a deadly weapon or dangerous instrument' when that person engages in conduct which creates or contributes to a substantial and unjustifiable risk that physical injury to another person by means of a deadly weapon or dangerous instrument will occur, and when he fails to perceive that risk, and when that risk of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Assault in any form is a serious crime. John Buza is an experienced New York criminal defense attorney who is a former Manhattan prosecutor. Feel free to contact him for a free consultation if you, or a loved one, is accused of this crime.