Serious Physical Injury and Deadly Weapon vs. Dangerous Instrument in Assault in the Second Degree, PL 120.05

We have previously discussed Assault in the Third Degree. This post addresses the more serious felony charge of Assault in the Second Degree, under New York Penal Law section 120.05. A common situation where this offense is charged is where a bar fight goes too far — someone uses a boot, a bottle, a knife or some other “dangerous instrument” or “deadly weapon” and someone else winds up getting hurt. Of course, this post is not a substitute for the advice of New York assault attorneys who specialize in serious felony cases.

One of the striking things about the Assault 2 statute is how much longer it is than the Assault in the Third Degree offense:

§ 120.05 Assault in the second degree. A person is guilty of assault in the second degree when: 1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or 2. With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or 3. With intent to prevent a peace officer, a police officer, registered nurse, licensed practical nurse, sanitation enforcement agent, a firefighter, including a firefighter acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such firefighter, an emergency medical service paramedic or emergency medical service technician, or medical or related personnel in a hospital emergency department, a city marshal, a traffic enforcement officer or traffic enforcement agent, from performing a lawful duty, by means including releasing or failing to control an animal under circumstances evincing the actor’s intent that the animal obstruct the lawful activity of such peace officer, police officer, registered nurse, licensed practical nurse, sanitation enforcement agent, firefighter, paramedic, technician, city marshal, traffic enforcement officer or traffic enforcement agent, he or she causes physical injury to such peace officer, police officer, registered nurse, licensed practical nurse, sanitation enforcement agent, firefighter, paramedic, technician or medical or related personnel in a hospital emergency department, city marshal, traffic enforcement officer or traffic enforcement agent; or 4. He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or 5. For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to him, without his consent, a drug, substance or preparation capable of producing the same; or 6. In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants; or 7. Having been charged with or convicted of a crime and while confined in a correctional facility, as defined in subdivision three of section forty of the correction law, pursuant to such charge or conviction, with intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 8. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly causes serious physical injury to such person; or 9. Being eighteen years old or more and with intent to cause physical injury to a person less than seven years old, the defendant causes such injury to such person; or 10. Acting at a place the person knows, or reasonably should know, is on school grounds and with intent to cause physical injury, he or she: (a) causes such injury to an employee of a school or public school district; or (b) not being a student of such school or public school district, causes physical injury to another, and such other person is a student of such school who is attending or present for educational purposes. For purposes of this subdivision the term “school grounds” shall have the meaning set forth in subdivision fourteen of section 220.00 of this

chapter. 11. With intent to cause physical injury to a train operator, ticket inspector, conductor, signalperson, bus operator or station agent employed by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions, a city marshal, a traffic enforcement officer, traffic enforcement agent or sanitation enforcement agent, registered nurse or licensed practical nurse he or she causes physical injury to such train operator, ticket inspector, conductor, signalperson, bus operator or station agent, city marshal, traffic enforcement officer, traffic enforcement agent, registered nurse or licensed practical nurse or sanitation enforcement agent, while such employee is performing an assigned duty on, or directly related to, the operation of a train or bus, or such city marshal, traffic enforcement officer, traffic enforcement agent, registered nurse or licensed practical nurse or sanitation enforcement agent is performing an assigned duty. 12. With intent to cause physical injury to a person who is sixty-five years of age or older, he or she causes such injury to such person, and the actor is more than ten years younger than such person. Assault in the second degree is a class D felony.

Some of the key concepts here are “serious physical injury” (as opposed to mere “physical injury”), as well as “deadly weapon” or “dangerous instrument.”

These terms are all defined in Penal Law section 10, the definition section of the New York Penal Law:

9. “Physical injury” means impairment of physical condition or substantial pain. 10. “Serious physical injury” means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

The most basic charge listed here is under the first subsection, which calls for a person to intentionally cause serious physical injury to another person. Thus, there is no strict requirement that a weapon be used under this subsection, as long as the person actually intended to cause serious physical injury. As far as the actual injury is concerned, there are reported cases which held that serious physical injury was made out where the alleged victim suffered:

• Loss of an ear, People v. Dingley, 50 A.D.2d 361 (3d Dep’t 1976);
• Fractured ribs and lung contusions, People v. Rollins, 118 A.D.2d 949 (3d Dep’t 1986);
• Fractured humerus requiring weeks of immobilization, People v. Mohammed, 162 A.D.2d 367 (1st Dep’t 1990);
• Multiple lacerations to the face requiring sutures, People v. Edmonds, 267 A.D.2d 19 (1s’t Dept 1999);
• Nose fracture requiring surgery, People v. Willson, 272 A.D.2d 959 (4th Dep’t 2000);
• Gunshot wounds, People v. Garcia, 202 A.D.2d 189, (1st’ Dep’t 1994); and
• Loss of vision nine months after the incident, People v. Hirschhorn, 231 A.D.2d 591 (2d Dep’t 1996).

However, some cases go the other way. Courts have found that the proof was insufficient in cases where the alleged victim suffered:

• A gunshot wound to the foot, People v. Bodford, 238 A.D.2d 928 (4th Dep’t 1997);
• Broken finger, People v. White, 283 A.D.2d 964 (4th Dep’t 2001); and
• Femur fracture, People v. Jerreld, 19 Misc.3d 595 (Co. Ct. 2008).

The bottom line is that the question whether the injury suffered was serious or not will depend on the particular facts and circumstances of your case. If you or a loved one has a case where this is charged, you will need competent counsel to advise youa after reviewing any relevant medical records and studying the case law in this area.

Another hot topic in this area is the question of whether something constitutes a deadly weapon or a dangerous instrument for purposes of an Assault 2 charge under the second subdivision.

Those concepts are also defined in PL sec. 10.00:

12. “Deadly weapon” means any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles.
13. “Dangerous instrument” means any instrument, article or substance, including a “vehicle” as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.

Again, these concepts, which can be absolutely crucial to a case, must be fully understood by a lawyer representing a defendant who has been charged under this subsection. The following are examples of weapons that have been considered “deadly” for purposes of an Assault Charge:

• Stun gun, People v. MacCary, 173 A.D.546 (2d Dep’t 1991);
• Air pistol, People v. Jones, 54 A.D.2d 740 (2d Dep’t 1976); and
• A long, straight knife, People v. Blanchard, 55 A.D. 2d (3d Dep’t 1977).

However, even if the weapon allegedly used under a prosecution under that subsection, it will almost always be alleged that it is a “dangerous instrument.” Examples include:

• A knife not even seen by the alleged victim, People v. Lawrence, 124 A.D.2d 597 (2d Dep’t 1986);
• An unseen object which caused a “deep laceration” to alleged victim’s head, People v. Pagan, 163 A.D.2d 681 (3d Dep’t 1990);
• An unseen blunt object, People v. McBride, 203 A.D.2d 85 (1st Dep’t 1994);
• The sidewalk, People v. Pedraza, 65 N.Y.2d 761 (1985); and
• Wire handle of a fly swatter, People v. Nehial, 227 A.D.2d 101 (1st Dep’t 1996).

However, in fewer instances, courts have held that the People did not meet their burden of establishing a dangerous instrument where the weapon alleged was:

• A “hard object,” People v. Peralta, 770 N.Y.S.2d 339 (1st Dep’t 2004);
• Teeth, People v. Owusu, 93 N.Y.2d 398 (1999); and
• Pepper spray, People v. Sinatra, 755 NYS2d 312 (2d Dep’t 2003).

The bottom line here is that there are arguments to be made on these issues, but only by experienced New York assault attorneys.