New York Assault Crimes: NY Penal Law Article 120

A common crime prosecuted by District Attorneys throughout New York City and the Hudson Valley, Assault charges can arise from from any intentional or reckless contact with another person that results in certain types of injuries. Like the life we all lead, no two allegations involving Assault are the same. In fact, criminal attorneys experienced in New York Assault crimes know that Assault charges are often complex and complicated. From the legal thresholds and theories of “physical injury” and “serious personal injury” to the mental state alleged in Assault crimes of intentional and reckless, there are routinely many moving parts to a person’s defense. None of this includes other factors such as whether the accused is alleged to have used a “dangerous instrument” or “deadly weapon,” what evidence exists that the incident occurred as represented, self-defense, and Domestic Violence concerns among others.

While the fear of being accused of a crime, a knock on the door by a NYPD detective and even being issued a NYC Desk Appearance Ticket may be overwhelming, not matter the degree of Assault alleged or whether it is either a felony or misdemeanor, it is extremely important that you retain a competent and qualified New York assault lawyer to carefully review your case, establish the strongest legal defense, or move to dismiss the charges to secure your exoneration.

New York Assault Charges: Three Degrees of Assault Crimes

The New York Penal Code distinguishes between three different levels or degrees of Assault. All codified in New York Penal Law Article 120, these offenses are Assault in the Third Degree, New York Penal Law 120.00, Assault in the Second Degree, NY Penal Law 120.05, and Assault in the First Degree, NY Penal Law 120.10. Each of these degrees of assault have their own unique elements, as well as their own penalties.

Assault in the Third Degree: NY Penal Law 120.00

As defined in NY Penal Law 120.00(1), Assault in the Third Degree is based on the premise you caused a “physical injury” to your targeted person and it was your intent to hurt him or her in such a manner.

In addition, the NYPD, Port Authority Police, Westchester County Police, Town of Poughkeepsie Police, Rockland County Sherriff, or any other law enforcement agency, can arrest you for Third Degree Assault in violation of NY Penal Law 120.00(2). Similar in that the injury you are accused of inflicting involved “substantial pain,” this theory of Third Degree Assault is based on charge of reckless, not intentional, behavior.

Assault in the Second Degree: NY Penal Law 120.05

New York Penal Law 120.05, Assault in the Second Degree is vastly more dangerous a crime than the lesser Third Degree Assault. In fact, Second Degree Assault is a “violent felony offense.” While there are numerous subsections allowing for different theories charging this offense, the most common of these class “D” felonies are charged through the first three subsections. You should expect the District Attorney to prosecute you post-arrest for NY Penal Law 120.05(1) if the evidence establishes your intent to, and you in fact caused, a “serious physical injury.”

In addition, you can face a charge of Second Degree Assault for an arrest alleging that you caused not a serious physical injury, but a lesser physical injury through the use of a “dangerous instrument” or “deadly weapon.” Again, not different in terms of the sentence you may face, this crime is established through NY Penal Law 120.05(2).

While maybe not as commonly charged in a felony complaint or an indictment, there are other felony Second Degree Assault crimes available to the District Attorney for presentation to a Grand Jury. These include NY Penal Law 120.05(3) where certain people such as nurses, firefighters, paramedics, police officers, and other classes of workers are intentionally and physically injured while performing heir essential services with the goal of preventing them from doing so.

Another Second Degree Assault crime, NY Penal Law 120.05(4), involves a reckless act where you use a dangerous instrument to cause the lesser physical injury to that person. NY Penal Law 120.05(8) and NY Penal Law120.05(9), both involve the accused, you, being older than eighteen and intending to cause a physical injury to a person ten years of age or less. The former Second Degree Assault is based on a theory of recklessness in that you intentionally intended to cause a physical injury but recklessly caused a serious one. The latter crime keeps the same age dynamic, but is no different than an intentional Third Degree Assault but for the age of the parties. Again, there are many more subsections and theories of Assault in the Second Degree that you must examine with your own criminal lawyer. The arrest for one does not preclude being charged in a criminal court with other crimes.

Assault in the First Degree: NY Penal Law 120.10

Assault in the First Degree, New York Penal Law 120.10, is without exception, the most serious, severe, grave, and devastating Assault charge in New York State regardless of whether you and your criminal lawyer find yourselves challenging a felony arrest, indictment or trial in a New York City borough or in Westchester County’s White Plains, Dutchess County’s Poughkeepsie or any other County Court in the Hudson Valley. NY Penal Law 120.10 does share some common ground with the lesser felony offenses, but packs a far greater punch and a potential for incarceration well beyond just about any crime found in the New York Penal Law.

One possible theory, and an extremely common violation codified in NY Penal Law 120.10(1), allows for your prosecution in NYC or any Hudson Valley county for First Degree Assault if you intentionally cause a serious physical injury to another person by using a deadly weapon or dangerous instrument.

Moreover, a person may be charged with First Degree Assault if they intend to seriously disfigure a person, or they permanently disable them as set forth in NY Penal Law 120.10(2).

Just like the lesser NY Assault crimes, NY Penal Law 120.10 has other viable causes of action and additional subsections criminalizing these types of behaviors resulting in significant injuries.

Types of Assault Charges: Additional NY Penal Law Article 120 Crimes

In addition to the three main classifications, there are many other types of Assault charges or crimes in New York that a District Attorney in Queens, Brooklyn, Putnam, Dutchess or Rockland County can charge you with pursuant to an arrest, felony complaint and indictment. These include:

  • Reckless Assault of a Child: NY Penal Law 120.01
  • Vehicular Assault: NY Penal Law120.03 and 120.04
  • Aggravated Vehicular Assault: NY Penal Law 120.04-A
  • Gang Assault: NY Penal Law 120.06 and 120.07
  • Assault on a Peace Officer, Police Officer, Frefighter, or Emergency Medical Aervices Professional: NY Penal Law 120.09 NY Penal Law 120.09
  • Aggravated Assault on a Police Office: NY Penal Law 120.11
  • Aggravated Assault on a Person Less than Eleven Years Old: NY Penal Law 120.12

An experienced New York Assault attorney can help mitigate charges that the you may face. While the success of your defense is dependent on many factors, one that will guarantee your failure is retaining the wrong legal counsel.

Enhancing and Decreasing the Degree and Severity of Assault

When an Assault is committed based in hate such as a crime perpetrated against another because of their race, sexual orientation, religion, etc., the District Attorney may decide to prosecute the crime as a hate crime. In doing so, prosecutors can bump up the level of offense one degree. Therefore, if the crime was an Assault in the Second Degree, a "D" felony punishable by up to seven years in prison, prosecuting that crime as a hate crime will raise the offense to a "C" felony punishable by up to fifteen years in prison. Obviously, this is a powerful tool in the prosecutor’s arsenal and exposes you, the accused, to far greater punishment. Keep in mind, merely making racial or ethnic slurs in and of itself should not give rise to a hate crime. You and your defense attorney must be prepared to confront such allegations to avoid the sanctions associated with these crimes.

While a hate crime designation enhances the Assault, if the accused fails to complete the crime or only attempts the offense, then it is considered an attempted crime. It is as simple as it sounds. Attempted Assaults decrease the degree of the Assault by one level. In the scenario above, the person accused of Attempted Assault in the Second Degree would not face a "D" felony, but an "E" felony punishable by up to four years in prison.

Potential Defenses to the Crime of Assault

A defense that may work for one Assault case may not work for another. Each defense is case specific and should be vetted with your New York criminal defense lawyer. The following are some potential areas of law and legal defenses to Assault and other crimes found in the New York Penal Law:

  • Legal & Factual - Degree of Injury Not Sufficient
  • Legal & Factual - Self Defense
  • Legal & Factual - Improper Identification (Lineup, Show up, etc.)
  • Legal & Factual - Search & Seizure Issues
  • Legal & Factual - Coerced or Improper Statement / Admission

Again, the above list consists of general concepts and is only a fraction of potential defenses. Your defense may or may not fall within these general concepts.

Regardless, each of these may be something to address with your New York assault attorney in the event you are arrested for Assault.

Consulting a New York Assault Attorney

If you are charged and convicted of Assault in any degree, you may be facing fines, prison sentences, probation, and many other serious penalties. In fact, while misdemeanor Third Degree Assault does not mandate incarceration, a conviction for either Second Degree Assault or First Degree Assault requires a judge to sentence you to a minimum of two and five years in prison with a maximum of seven and twenty five years respectively. An experienced and dedicated New York Assault lawyer can help explain the charges against you, as well as work to have your case dismissed or your charges dropped.

When faced with a potential indictment or trial, accused of any degree of Assault, or exposed to incarceration in either a county jail or state prison, there is no substitution for knowledge, experienced and advocacy. In your time of need, contact the criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC to implement your best defense and protect your name, integrity, liberty and future.

Call the New York Assault defense lawyers and former Manhattan prosecutors at (212) 312-7129 or contact us online today.

New York Criminal Lawyer Blog - Assault
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