Assault in the Second Degree: NY Penal Law 120.05
New York Penal Law 120.05, Assault in the Second Degree, is a significantly more serious felony than Third Degree Assault, but a lesser crime when compared to Assault in the First Degree. Not only is there a presumed minimum sentence of two years in a New York prison, Assault in the Second Degree is punishable by up to seven years. When an allegation involves domestic or familial violence, expect that your punishment, if convicted, will be quite severe.
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Like the lower level of Assault, Second Degree Assault has many nuances, distinct subsections and a significant amount of legal decisions that impact how your New York Assault lawyer will not only analyze the case against you, but implement a viable and the best defense. The following are some of the more commonly prosecuted sections of Assault in the Second Degree throughout New York City – Manhattan, Brooklyn, Queens and the Bronx – as well as the numerous counties making up the Hudson Valley –Westchester, Rockland, Putnam, Dutchess and Orange.Assault in the Second Degree: NY Penal Law 120.05(1)
You are guilty of Assault in the Second Degree, NY Penal Law 120.05(1), if you have the intent to cause serious physical injury to someone and actually cause serious physical to that person or another person. It is imperative to note that “serious physical injury” is a term defined in the New York Penal Law. It is likely that an eye so swollen shut that you can’t see for a couple of days or even a fracture to the nose is not a sufficient injury for classification as “serious.” While such injuries would undoubtedly fulfill the elements of Assault in the Third Degree, the burden upon the District Attorney is far greater and requires any injury that, for example, causes a long term protracted health issue to reach the threshold for this subsection of Second Degree Assault.
If you have the intent to cause only a physical injury, a welt on the head, a stunning blow to another person’s stomach, or a kick to the genitals putting that person temporarily “out of commission,” you likely have not committed a felony if you use your hands, fists, or feet. Assuming you cause the physical injury you intended, however, and you did so through the use of a “dangerous instrument” or “deadly weapon,” then prosecutors have the legal ability to increase the crime from a misdemeanor to the violent felony of Assault in the Second Degree, New York Penal Law 120.05(2). Unlike New York Penal Law 120.05(1), even though both crimes expose you to the same penalty and punishment, the level of injury caused need not be “serious injury,” but merely a “physical injury” effectuated by and through a dangerous instrument or deadly weapon for the purpose of NY PL 120.05(2).
Again, as noted above, there are certain terms specifically defined in the New York Penal Law. These include “deadly weapon” and “dangerous instrument.” If instead of using your fist to punch someone to cause the physical injury you use the handle of a gun, a knife or even a chair or the heel of your boot, law enforcement can charge you with subsection two of Second Degree Assault. Further described in the section dedicated to NY Penal Law 120.05(2) and a matter to address in greater detail with your criminal defense attorney, an instrument is a “dangerous instrument” when it is used in a dangerous manner that can cause serious injury or even death. Obviously, something innocuous in its normal setting can become a “weapon” when used in violent, aggressive and dangerous manner.Assault in the Second Degree: NY Penal Law 120.05(3)
When you commit the crime of Assault in the Third Degree where your intent is to cause a physical injury and the victim is a police officer, fireman or other peace officer, then you are guilty of Assault in the Second Degree pursuant to New York Penal Law 120.05(3). The additional element, however, is that you must also intend to prevent that officer of the law from performing a lawful duty.
Only a fraction of the many different subsections of Assault in the Second Degree, the above three subsections are the most commonly prosecuted by Assistant District Attorneys but by no means all of them. Because there are many legal definitions and legal decisions defining the scope and nature of these crimes, it is critical to vet your case and facts with an experienced New York criminal defense attorney. Equally important, regardless of the subsection you face, failure to implement the best defense will without question cause you direct and collateral damage of grave proportions.
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The former Manhattan prosecutors and New York criminal lawyers at Crotty Saland PC are armed with the practical experience and knowledge to defend you against an Assault allegation. Know, when there is no substitution for advocacy, you can count on Crotty Saland PC to identify and implement your best and strongest defense.
Call the New York criminal defense attorneys and former Manhattan prosecutors at (212) 312–7129 or contact us online today.