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Second Degree Assault – Subsection Three: NY Penal Law 120.05(1)

Assault in the Second Degree, New York Penal Law 120.05, is about as serious a violent felony you can face in any court from Manhattan and Brooklyn in New York City to White Plains and Nyack in Westchester and Rockland counties respectively. In fact, with a presumptive minimum two years in prison, with the potential for as long as seven years state prison, prepare yourself for incarceration if you fail to implement the best defense with your criminal defense attorney. While the crime of Second Degree Assault does not change from a penalty and punishment perspective depending on the subsection of your arrest, there are different kinds of circumstances and allegations covered by Assault in the Second Degree, NY Penal Law120.05.

Second Degree Assault: NY Penal Law 120.05(1)

The first subsection of Assault in the Second Degree looks at the degree of injury resulting from the alleged assault. On paper, what differentiates an arrest and prosecution for Second Degree Assault, NY Penal Law 120.05(1), from the lesser misdemeanor Third Degree Assault, New York PL 120.00(1), is not that much. As your New York Assault lawyer will explain, however, the application of the different standards is starkly distinct.

Whether the Queens County District attorney or his equivalent in Dutchess or Putnam counties seeks an indictment for Assault in the Second Degree under PL 120.05(1), the evidence must establish that you intended to cause a statutorily defined “serious physical injury” to another person, and in fact did so. Again, as you should further examine with your criminal lawyer, the first item that jumps off the page is, “what constitutes a 'serious physical injury?'”

Second Degree Assault: The Serious Physical Injury Element of NY PL 120.05(1)

“Serious physical injury” is a higher burden or level of injury than you might expect. It is defined in the Penal Law of the State of New York as far more than substantial pain. Instead, this “wound” presents a substantial risk of death. If not, the aggrieved party, aka, the complainant, must sustain a serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ. Legal terminology aside, to eclipse or reach the threshold of a serious physical injury, it has to be life threatening, or result in complications and effects that last for a long time.

Second Degree Assault: Examples of Serious Physical Injuries

For example, it is likely that a cut on your arm, even a deep laceration, will not rise to the level of serious physical injury. It shouldn't be life threatening, and even a deep cut will heal without any long-term effects. Broken bones? Depending on the magnitude and future complications of the fractures, this too might not be considered serious physical injury if it's not life threatening and heals well. Examining these scenarios, if the laceration left a scar from your eye, down your cheek and into your mouth, then it could very well rise to this felonious level. Similarly, if the broken bone is shattered in such a way that the complainant will forever walk with a limp or lose significant use of the limb, this too would like violate New York Penal Law 120.05(1).

Second Degree Assault: Intentional, Reckless and Accidental Actions

Beyond potentially confronting the magnitude or nature of your injury, an experienced criminal defense lawyer regularly representing clients in arrests, indictments and trials for Second Degree Assault in New York will no doubt challenge the prosecution’s theory of intent should such a defense be viable. In other words, if a serious physical injury resulted from your conduct, but it's not clear beyond a reasonable doubt from the evidence that you meant to cause a serious injury, then the District Attorney cannot secure a conviction for violating New York Penal Law 120.05(1). Instead you may, or may not, be guilty of the lesser misdemeanor offense of Assault in the Third Degree, New York Penal Law 120.00(1). While a conviction for Third Degree Assault would not exonerate you, the offense is far less serious and exposes you to no jail time or up to one year as a matter of law.

Not so extreme, albeit seemingly so in this example, if you get in a fight outside a bar and strike another person once with your fist in their face, self-defense issues aside, its likely you intended to cause a physical injury. However, if instead of merely blowing up your target’s lip you shattered his jaw requiring reconstructive surgery for future use, you would have a potentially valid defense that your intent was not to cause such a devastating injury with your one punch. In such a circumstance the District Attorney and your lawyer might look at the way you threw the punch, the apparent strength of the strike, and words or other conduct associated with the alleged attack. If the accusation involves Domestic Violence crimes, the law does not change, but expect prosecutors’ willingness to more aggressively pursue felony charges even if a misdemeanor crime may be more appropriate.

What is seemingly straightforward criminal charge on its surface, Second Degree Assault is anything but that. As this criminal statute makes clear, no charge is as simple as it may seem on the surface. Every criminal charge found in the New York State Penal Law requires some level of expertise and knowledge to interpret. When staring down the real possibility of between two to seven years mandatory imprisonment upon conviction, you cannot afford an attorney learning New York criminal law on the fly as he or she navigates you through the criminal justice system. Should your defense rely on such inexperience by counsel with limited trial skills, blame no one but yourself when your jail cell door shuts behind you for a period of time that no matter what it is, is far too long.

When there is no substitute for knowledge, experience and advocacy, know you can count on the New York criminal lawyers and former Manhattan prosecutors at Saland Law. v

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

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