Assault

Assault-Related Offenses

Altercations amongst family members and domestic violence, bar fights, road rage — these are among the many sets of circumstances under which an assault can take place. If you have been charged with an assault, you need to work with experienced attorneys who know how to best approach your case.

Article 120 of the New York Penal Law (the “Penal Law,” or “PL”) contains several assault and assault-related provisions. These charges may apply in a wide variety of factual circumstances; from fist fights and minor scuffles to stabbings and shootings.

Assault

Key Penal Law Provisions:

• Assault in the third degree, PL 120.00 (1), a class A misdemeanor
• Assault in the second degree, PL 120.05, a class D felony
• Assault in the first degree, PL 120.10, a class B felony
• Gang assault in the second degree, PL 120.06, a class C felony
• Gang assault in the first degree, PL 120.07, a class B felony
• Physical Injury and Serious Physical Injury, PL 10.00(9), (10)
• Deadly Weapon or Dangerous Instrument, PL 10.00(11), (12)

Article 120 of the The New York Penal law contains several provisions dealing with the concept of assault. The basic form of the assault offense is defined in Penal Law section 120.00(1), which prohibits a person from intentionally, recklessly, or with criminal negligence, causing “physical injury” to another. PL 120.00. The third-degree assault charge may apply to common street or bar fights, fist-fights, or other physical altercations where someone was punched, kicked, scratched, bruised, or suffered some other kind of physical injury that does not rise to the level of serious physical injury, or where no weapon of any kind was involved. Assault in the third degree is a class A misdemeanor.

More serious assaults can be charged as felonies, and commonly apply to cases involving certain aggravating factors such as more severe, or more specifically, “serious physical” injuries to the complainant, assaults on children, three (or more)-on-one gang assaults, or the use of weapons or dangerous instruments (as those terms are defined in the law).

The second-degree assault statute contains eleven different subsections under which a person may be charged. PL 120.05. The first applies in cases of “serious physical injur[ies]” are sustained by the victim: “A person is guilty of assault in the second degree when . . . [w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person.” PL 120.05(1). Serious physical injury is defined as “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.” PL 10.00(10). The second more common form of assault in the second degree applies to cases involving weapons: “A person is guilty of assault in the second degree when . . . [w]ith 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 . . .” PL 120.05(2). The definitions of “deadly weapon” or “dangerous instrument” are broad and have been interpreted to encompass just about anything imaginable that can be used as a weapon of some kind under the given circumstances. See PL 10.00(12), (13). Other second-degree assault provisions apply to cases involving assaults on police officers and firemen, PL 120.05(3); the reckless causing of serious physical injury by means of a deadly weapon or dangerous instrument, PL 120.05(4); non-consensual administration of drugs to another person, PL 120.05(5); causing physical injury to a non-participant during the course of committing a felony, PL 120.05(6); jail or prison assaults, PL 120.05(7); assaults resulting in serious physical injury to a person under 11 years of age, PL 120.05(8); assaults resulting in physical injury to a person under 7 years of age, PL 120.05(9); assaults resulting in physical injury to a school or public school district, PL 120.05(10); and assaults involving physical injury to transportation workers, PL 120.05(11).

First-degree assault charges are reserved for cases of the intentional infliction of serious physical injury or disfigurement, PL 120.10(1), (2), cases involving actions taken with “depraved indifference to human life” resulting in serious physical injury to another person,” PL 120.10(3), or cases where, in the course of committing a felony, a non-participant suffers serious physical injury. PL 120.10(4).

There are also two separate charges devoted to the concept of gang assault: “A person is guilty of gang assault in the second degree when, with intent to cause physical injury to another person and when aided by two or more other persons actually present, he causes serious physical injury to such person or to a third person.” PL 120.06. The more serious first-degree gang assault charge may apply where the non-participant suffers serious physical injury. PL 120.07.

Vehicular Assault

Key Penal Law Provisions:

• Vehicular Assault in the Second Degree, PL 120.03
• Vehicular Assault in the First Degree, PL 120.04
• Vehicle, PL 10.00(14)

Vehicular assault is a felony charge for physically injuring another person with the use of a motor vehicle. The severity of the offense is scaled to the degree of alleged malfeasance. Factors that will affect the degree of the charge would include if the assault was committed while the offender was also driving with a suspended license, violating DWI, drunk driving, or vehicular-operation laws, hauling explosives in violation of the law, causes serious physical injury to more than one other person, PL 120.04(4), or had previous convictions for vehicular assault or vehicular homicide. PL 120.04(5)

Recent Results

• Client indicted for felony Assault in the Second Degree. Result: All charges dismissed, no order of protection.
• Client indicted for felony Assault in the Second Degree for allegedly hitting his tenant in the head with a baseball bat and causing him to receive several medical staples in his head at the hospital. Result: Client allowed to plead guilty to non-criminal violation of Disorderly Conduct with five days of private community service, and later persuaded the judge to seal all court records of the arrest such that they are only available to the judge and the client.
• Client received a desk appearance ticket and eventually was charged assault following an altercation on the street in Manhattan. Result: All charges dismissed.
• Client accused of assaulting his domestic partner. Result: All charges dismissed, no order of protection.
• Client charged with assaulting his wife and re-arrested for allegedly violating a temporary order of protection. Result: Contempt case dismissed by prosecutor and client received an adjournment in contemplation of dismissal with a limited order of protection in satisfaction of the assault charges. Client did not have to serve jail time, attend anger management, or do community service.
• Client charged with assault after punching another person in the face at a restaurant after the other person made insulting racist comments. Result: All charges dismissed, no community service, no jail, no order of protection.