Landscape with overlapped lawyer photo
Featured In
Media Badges

New York Assault Crimes: NY Penal Law Article 120

Whether you are accused of a felony or misdemeanor Assault, it is extremely important that you retain a competent and qualified lawyer to carefully review your case, establish the strongest legal defense, or move to dismiss the charges. 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, paralysis or a delay in implementing the best strategy can be catastrophic.

Definitions, Elements and Hypothetical Scenarios

The New York Penal Law distinguishes between three different levels or degrees of Assault. All codified in Article 120, these offenses are Penal Law sections 120.00, 120.05, and 120.10. Each of these crimes have their own unique elements, as well as their own penalties to address with your legal counsel.

Third Degree: Definition and Example

As defined in Penal Law 120.00(1), Assault in the Third Degree, a Class “A” misdemeanor, 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. Penal Law 120.00(2) is similar in that the physical injury you are accused of inflicting involved “substantial pain,” but this subsection and theory is based on charge of reckless, not intentional, behavior.

Possibly the most common example is an allegation that a person punched someone once, or some limited number of times, and that the victim then suffered “substantial pain” from that punch. These injuries often include bruising or redness and may even cause some bleeding but no long-term damage.

Second Degree: Definition and Example

Penal Law 120.05, Assault in the Second Degree, is a vastly more dangerous a crime than the lesser misdemeanor offense. In fact, this degree is a “violent felony offense.” While there are numerous subsections allowing for different theories, 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 Penal Law 120.05(1) if the evidence establishes your intent to cause, and you in fact caused, a “serious physical injury.” In addition, you can face this charge after an arrest alleging that you caused 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 Penal Law 120.05(2).

While maybe not as commonly charged in a felony complaint or an indictment, there are other felony crimes available to the District Attorney for presentation to a Grand Jury. These include 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. Penal Law 120.05(4) involves a reckless act where you use a dangerous instrument to cause the lesser physical injury to that person. Penal Law 120.05(8) and Penal Law 120.05(9) respectively, require that you intentionally try to cause a physical injury but recklessly caused a serious one or that being older than eighteen you intentionally caused a physical injury to a person ten years of age or less.

There are many more subsections and theories 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.

A circumstance elevating a charge to this class “D” felony is where the injuries are more severe and constitute “serious physical injury,” or where a weapon was used in the commission of the crime, which can include anything from a broken bottle to a shoe.

First Degree: Definition and Example

Assault in the First Degree, Penal Law 120.10, is without exception the most devastating of these charges regardless of whether you are faced with a felony arrest, indictment or trial. 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 Penal Law. Just like the lesser crimes, Penal Law 120.10 has other viable causes of action and additional subsections, but the most common offense involves the intentional infliction of serious physical injuries that cause long term protracted consequences to health and even disfigurement.

One possible theory, and an extremely common violation codified in Penal Law 120.10(1), allows for your prosecution in NYC or any Hudson Valley county if a combination of the two scenarios for Assault in the Second Degree both are present – that is if you intentionally cause a serious physical injury to another person and you use a deadly weapon or dangerous instrument to do so. Moreover, a person may be charged with this crime if they intend to seriously disfigure a person, or they permanently disable them as set forth in Penal Law 120.10(2).

Penalties and Punishment

The penalties, if convicted, depend on the degree of the charge and the corresponding classification of that offense. Assault in the Third Degree is an “A” misdemeanor and is therefore punishable by up to one year in the local jail, such as Rikers Island, three years probation, or lesser penalties such as a conditional discharge, fines, community service, and/or surcharges. Assault in the Second Degree is a “D” violent felony and is therefore punishable by time in state prison – a presumptive mandatory two years up to seven years or five years probation. Assault in the First Degree is a “B” violent felony with a sentence up to 25 years in prison and a minimum of five years in prison.

Related Offenses and Collateral Issues

Assault is very general term that takes many different forms and permutations in the Penal Law. Interestingly, the term in New York applies to what is traditionally known elsewhere as Battery. Being one of the most generic and all-encompassing types of crime, the offenses come in many different “flavors” all of which are separated and specified by law. In addition to the various degrees, the NY Penal Law specifically refers to numerous others ranging from Reckless Assault of a Child, PL 120.02, and Vehicular Assault, PL 120.03, to Gang Assault, PL 120.06, and Assault on a Peace Officer, Police Officer, Firefighter, or Emergency Medical Services Professional, PL 120.08..

Irrespective of which offense you find yourself accused of, know that there are immigration consequences to an arrest , reporting and employment issues for individuals working for the City of New York, MTA and other governmental agencies, and reporting concerns relating to FINRA and other licensure and certification in the professional fields such as medicine.

Your Case, Your Defense, Your Future

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

  • Degree of Injury Not Sufficient
  • Self Defense
  • Improper Identification (Lineup, Show up, etc.)
  • Search & Seizure Issues
  • 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 attorney in the event you are arrested for these charges.

When faced with a potential indictment or trial 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 Saland Law to implement your best defense and protect your name, integrity, liberty and future.

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

New York Criminal Lawyer Blog - Assault
Client Reviews
... I was facing a class B felony and potentially tens of thousands in fines and some legit jail time and after hiring Jeremy Saland he obviously struck enough fear into the prosecutors with his sheer litigation might that it was knocked down to a petty misdemeanor and after a few sheckles and a handful of counseling sessions, I will no longer have a criminal record. The offices of Saland Law are the Shaq and Kobe of criminal defense in New York City and to even consider another firm is outright blasphemy. I stand by this statement 100% Evan
Let me start by saying how amazing Liz Crotty is! I am a resident of California, who needed representation for my son who received a desk citation while he was visiting NYC. Liz jumped on the case right away; she was very thorough in explaining things to me. She is strictly business too! She went to court on my son's behalf and had his case dismissed. I am forever grateful to her. Seana G.
Contact Us 212.312.7129

1Free Consultation*

2Available 24/7

3We Will Fight For You!