What is Assault in the Third Degree? The Basics (Part I)

Whether it stems from a bar fight, an incident involving road rage, a domestic spat, or even an altercation at the work-place, cases involving charges of Assault in the Third Degree are among the most common – and serious – we see in the City of New York. A Class “A” misdemeanor punishable by up to 1 year in jail, “Assault 3” cases are among the most serious misdemeanors because they involve allegations of physical injury inflicted upon another, and prosecutors thus subject them to increased scrutiny. In this article, we discuss some of the legal components of Assault in the Third Degree, and a powerful tool our team of former prosecutors often uses to attack assault charges prior to trial: challenges to legal sufficiency.

Assault in the Third Degree lies in Penal Law 120.00, which states that a person can be guilty of that charge in the following three situations:

1. When, with intent to cause physical injury to another person, he or she causes such injury to such person or to a third person; or

2. He or she recklessly causes physical injury to another person; or

3. With criminal negligence, he or she causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

The vast majority of alleged assaults fall within the ambit of subsection (1), however subsection (2) is usually charged as an alternate theory to the same conduct for which subsection (1) applies. Thus, a person who punches another person causing some form of injury will usually be charged will violating PL 120.00(1) (for intentionally causing physical injury) and PL 120.00(2) (for recklessly causing physical injury). The common denominator for all three subsections of Assault 3 is “physical injury,” which is defined as “impairment of physical condition or substantial pain.

As defense attorneys, we are charged with the duty of attacking our cases from every viable angle. This may not only include a challenge to the allegation that our client was actually the person who did the assaulting, but also a challenge to the “sufficiency” of the allegation of injury. In other words, we argue that the injury alleged to have occurred does not even rise to the level of a misdemeanor, regardless of who caused it. A more specific challenge we might employ involves an assertion that the prosecutor’s allegations do not legally make out “substantial pain.” (Similar arguments are made up the chain as the threshold level of injury increases for Assault 2 and 1, respectively).

How is this done? When a defendant is formally charged with assault, he/she is arraigned on the charges and their attorney provided a copy of the charging instrument, usually referred to as the criminal court complaint. This complaint contains a brief summary of allegations which serves the purpose of putting the defense on notice of the nature of the case. For example, a complaint might state, in relevant part, that the defendant was observed “punching (the victim) several times about the head with a closed fist thereby causing (the victim) to sustain a bloody lip, a laceration below the eye and substantial pain.” A less severe complaint might state that the defendant was observed striking the victim numerous times “with his hand, causing redness to the (victim’s) face and substantial pain.”

Of critical importance is the fact that the Court of Appeals (New York’s highest Court) has held that a victim’s subjective description of an injury will not always be sufficient to support a finding of physical injury, and that injuries are to be looked at objectively as well. This rule exists to prevent a complaint stating the “victim” experienced substantial pain after being slapped with a feather from sufficiently stating a case for assault.

So which types of cases have been held to have sufficiently plead physical injury and which have not? We discuss that and more here in Part II.