In New York, an assault occurs when a person injures someone else without legal justification. Assault can be charged as either a misdemeanor or a Class D felony or higher level Class B felony. The different levels of assault depend on several factors, including the severity of a victim’s injury, whether the defendant used a weapon or object to cause an injury, whether the defendant caused the injury while committing another crime, and (in some cases) whether a victim is provided special protection by New York law. This article deals solely with felony assault.
(N.Y. Penal Law §§ 120.05, 120.10).
To read about misdemeanor assault, see Misdemeanor Assault in New York.
What is Felony Assault?
There are two levels of felony assault – the lower level Class D felony of second-degree assault and the higher level Class B felony of first-degree assault. Both levels require that a victim suffer a “physical injury” of varying severity. More specifically, while second-degree assault can be charged in some cases if a victim suffers simply a “physical injury,” the higher level first-degree assault requires a more severe “serious physical injury.” Besides the requirement of injury, both levels of felony assault share other factors. For instance, both levels cover injuries caused either intentionally or recklessly. Also, both levels of felony assault encompass injuries caused by either a “deadly weapon” or “dangerous instrument.” Before turning to the specifics of each felony assault crime, let’s define some of the common factors.
Physical injury versus serious physical injury
A “physical injury” occurs when a victim suffers at least some physical – not mental – injury or pain. That is because New York law defines “physical injury” as “impairment of physical condition or substantial pain.” (N.Y. Penal Law § 10.00(9)). In contrast, a “serious physical injury” creates a substantial risk of death, or actually causes death, long-term disfigurement, ill health, or loss or impairment of an organ.
A person causes an injury intentionally when the person basically wants the injury to occur. Further, under New York law, as long as the defendant intended to injure someone, a defendant can be charged with assault for injuring any other person – even someone other than the intended victim. In other words, if the defendant missed the intended victim and hit and injured someone else instead, it is still an assault. In the end, what matters is whether the defendant wanted to cause an injury, not whether the defendant actually injured the intended victim.
A person acts recklessly “when he is aware of and consciously disregards a substantial and unjustifiable risk that” his actions will cause an injury (N.Y. Penal Law § 15.05(3)). In other words, a person is reckless when he is aware that his actions will likely cause the injury, but he just doesn’t care. Note, being voluntarily drunk or high does not provide a defense to reckless assault.
Deadly weapon or dangerous instrument
A deadly weapon includes a loaded firearm, several kinds of knives (for example, switchblades, gravity knives, daggers), billy, blackjack, and plastic or metal knuckles. In contrast, a “dangerous instrument” is any object (including a vehicle) that, while not usually a weapon, can nonetheless be used in a way that is readily able to cause death or serious injury. For example, hitting someone with a metal garbage can could constitute assault with a dangerous instrument.
(N.Y. Penal Law § 10.00(12), (13)).
Second degree assault
New York divides second degree assault into 12 scenarios. Second degree assault occurs when a defendant:
- intentionally causes a serious physical injury. Keep in mind that the crime occurs even if the defendant winds up injuring someone other than the intended victim
- intentionally causes physical injury using a deadly weapon or dangerous instrument. Again, it is irrelevant whether the intended victim or someone else is injured.
- intending to prevent certain categories of persons from performing a lawful duty, causes physical injury to any of those persons by acts including releasing or failing to control an animal. To be charged with this crime the circumstances must indicate that the defendant intended that the animal obstruct performance of a lawful duty. The categories of persons covered by this aspect of second degree assault are peace officers, police officers, registered nurses, licensed practical nurses, sanitation enforcement agents, firefighters, emergency medical service paramedics or emergency medical service technicians, or medical or related personnel in a hospital emergency department, city marshals, traffic enforcement officers or traffic enforcement agents.
- recklessly causes a serious physical injury by using a deadly weapon or dangerous instrument -- for instance, throwing a chair at someone.
- gives a drug or substance to someone without that person’s consent (and for non-medical purposes), with the intent to cause stupor, unconsciousness or other physical impairment or injury.
- while committing or attempting to commit a felony (other than the assault) or fleeing immediately after, and in order to help the crime or escape succeed, causes physical injury. The injury can be caused by either the defendant or an accomplice and the victim must be a non-accomplice.
- intentionally causes physical injury to a victim while being held in a correctional facility after being charged with or convicted of a crime. Again, assault occurs so long as the defendant intended to cause an injury, even if the defendant injures a person other than the intended victim.
- if the defendant is at least 18 years old and with the intent to cause physical injury to a victim who is younger than 11 years old, ends up actually recklessly causing serious physical injury.
- if the defendant is at least 18 years old, intentionally causes physical injury to a victim who is less than seven years old.
- at a place a defendant knows or reasonably should know is on school grounds intentionally causes physical injury to an employee of a school or school district. Alternatively, if the defendant is not a student of the school or district, it is second degree assault to intentionally cause physical injury to a student of the school or district who is present on the school grounds for educational purposes.
- intentionally injures a train operator, ticket inspector, conductor, signalperson, bus operator or station agent performing an assigned duty on, or directly related to, the operation of a train or bus, or intentionally injures a city marshal, traffic enforcement officer, traffic enforcement agent, registered nurse or licensed practical nurse or sanitation enforcement agent performing an assigned duty.
- intentionally causes physical injury to a person who is at least sixty-five-years-old, when the defendant is at least ten years younger than the victim.
First degree assault
As the most serious assault crime, first degree assault requires that a victim suffer more than a simple “physical injury.” Indeed, first degree assault occurs only if a victim suffered either a serious physical injury (as opposed to simply a physical injury) or a severe and permanent disfigurement or loss of a body part. First degree assault occurs in four situations.
First, it is first degree assault when an intended victim or someone else suffers a serious physical injury caused by a deadly weapon or dangerous instrument if the defendant intended to cause such injury. Again, as long as the defendant intended to cause the injury, it is first degree assault even when the defendant winds up injuring someone other than the intended victim.
Second, first degree assault occurs when a defendant intentionally disfigures someone else permanently, or permanently destroys, amputates, or disables a member or organ of someone else’s body. Again, the crime occurs even when someone other than the intended victim suffers the necessary amount of injury.
Third, it is first degree assault to cause serious physical injury when recklessly engaging in conduct that carries a grave risk of death. For instance, driving a car into a crowd.
Fourth, first degree assault occurs when a defendant is committing or attempting to commit a felony (other than the assault) or fleeing immediately after, and while doing so and in order to help the crime or escape succeed, the defendant or an accomplice causes serious physical injury to a non-accomplice.
A defendant convicted of felony assault can receive a prison sentence or probation, as well as be fined. In New York, a prison sentence for felony assault is an “indeterminate” term, meaning that a judge imposes a sentence with a minimum and maximum term (for instance, three to nine years). A judge has the ability to set a range within both the minimum and maximum terms. For example, the maximum term for a felony conviction must be at least three years and – depending on the level of felony – can be up to 25 years. The minimum term must be at least one year and cannot exceed 1/3 of the maximum term. A defendant must serve the minimum term and is then eligible for parole. If the defendant is not paroled, he will wind up serving the maximum term. A fine for a felony conviction cannot exceed $5,000. The period of probation for a felony conviction is five years.
Second degree assault
When a defendant is convicted of the Class D felony of second degree assault, a judge can impose a maximum prison term of at least 3 years to no more than 7 years. If the defendant is not a second felony offender or persistent violent felon, a judge has the power to impose an alternative term of a “definite” period of incarceration of one year or less (meaning that the judge can order a term of one year or any other number of days between one day up to a year).
First degree assault
The Class B felony of first degree assault carries a maximum prison term of at least three years and could actually be up to 25 years.
Consult With a Lawyer
Being charged with assault is a serious matter. It is quite advisable to consult with an attorney having knowledge of the assault laws and penalties applicable in your particular case. A knowledgeable criminal defense attorney may be able to convince either a prosecutor or a jury that a defendant either did not intend to cause an injury or at least did not cause a serious enough injury to merit a charge of felony assault. That could result in lesser punishment (perhaps by pleading guilty to a lesser offense such as misdemeanor assault or disorderly conduct) or even dismissal of a case.