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Second Degree Assault – Subsection Three: NY Penal Law 120.05(3)

Other than First Degree Assault, there is no more significant Assault crime in the New York Penal Law than Assault in the Second Degree, New York Penal Law 120.05(3), and every other subsection of this offense. Unlike the lesser, and far more common, charge of Assault in the Third Degree, New York Penal Law 120.00, Second Degree, NY Penal Law 120.05, has ramifications that far outweigh those of any misdemeanor and many other felonies. In fact, Second Degree Assault is classified as a violent felony, which means the possibility of significant state prison time as well as enhanced sentencing for future violent felony offenses – even a life sentence for a third such violent felony offense within a certain time period. If it is not clear from reading this brief introduction, retaining experienced criminal lawyers versed in NY Assault crimes is critical.

There are numerous and varied subsections of NY PL 120.05, all of which require, if not demand, the assistance of an experienced criminal defense attorney. The statute attempts to essentially identify many different aggravating circumstances and allegations that effectively elevate what would otherwise be a misdemeanor to a class “D” violent felony. The third subsection of this statute, PL 120.05(3), is aimed at whether or not the victim of the Assault is within a class of people that the legislature wants to provide additional protection to, and additional punishment to the perpetrator of a crime. Like the first two subsections of Assault in the Second Degree, this subsection considers an attack on these classes of people to be an aggravating factor along with what would otherwise constitute a class “A” misdemeanor of Assault in the Third Degree, PL 120.00(1).

Second Degree Assault: Elements of NY Penal Law 120.05(3)

The classes of people receiving additional protection via enhanced levels of charging and sentencing pursuant to Second Degree Assault, NY Penal Law 120.05(3) are police officers, firemen, and other peace officers. However, as your criminal lawyer will further explain, this enhancement does not apply at all times and in all circumstances, such as an off-duty police officer just hanging out in a bar. Instead, if you are accused of assaulting a peace officer, the District Attorney must also prove beyond a reasonable doubt that you intend to prevent that officer from performing a lawful duty. In other words, they must be “on the job” and the Assault must be seeking to prevent him or her from doing some legitimate part of their job. This may sound like a very specific and rare standard to meet, but it is not so in practice. One classic example of a situation covered by this subsection is a person being arrested by a police officer for some petty offense, such as shoplifting or possession of marihuana. As the police officer is trying to handcuff the person, they start swinging at the officer and punching the officer. This act on the part of the suspect is clearly aimed at preventing the officer from arresting them, which is a lawful duty of that police officer. This would, therefore, qualify as Assault in the Second Degree under this subsection 3 of 120.05, and elevate what would otherwise be a misdemeanor if it were committed against a civilian. Again, while the injury may be fairly insignificant and by no means serious, prosecutors can raise the crime to the class D violent felony of NY Penal Law 120.05(3). Instead of potentially facing no jail time, if convicted the presumption is that you will serve no less than two years and as long as seven years in a New York State prison.

While not uncommon in any sense, this particular subsection covers only a fraction of the many arrests made for Assault in the Second Degree under the many different subsections of the statute. Collectively, subsections 1, 2 and 3 may be the most common, but they are certainly not the only subsections utilized by Hudson Valley and New York City District Attorneys' Offices in the prosecution of cases involving Assaults and injuries.

Because there are many technical legal terms and court rulings that interpret them further defining the scope and nature of New York Penal Law 120.05(3), it is imperative to examine your case and evidence establishing the same, with a New York criminal defense attorney intimately familiar with and versed in the law of Second Degree Assault. The former Manhattan prosecutors and New York criminal defense lawyers at Saland Law are not merely armed with the practical experience and knowledge to defend you against any Assault allegation, arrest or trial, but are ready to do so in what is likely your greatest time of need.

Call the New York criminal defense attorneys and former Manhattan prosecutors at (212) 312–7129 or contact us online today.

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