Felony Assault in New York

In New York, a person commits an assault by physically injuring another. The offense can be a misdemeanor or felony, depending on how serious the assault is and who the victim is. This article focuses on felony-level assaults in New York.

What Is Felony Assault in New York?

New York has three degrees of general assault crimes, with first-degree assault being the most serious and third-degree the least serious. Third-degree is the only misdemeanor-level assault crime, although in some cases, enhanced felony penalties can apply.

First- and second-degree assault are always felonies. Other felony assault crimes that exist in New York include:

• assault on a police officer, firefighter, EMS provider, or judge
• aggravated assault on a police officer
• aggravated assault on a child younger than 11
• reckless assault of a child, and
• gang assaults.

These assaults (described below) carry penalties ranging from class D to class B felony.

New York law considers these assaults to be violent felonies and subject to minimum prison sentences. A judge can also order a convicted defendant to pay fines and restitution to a victim. Harsher penalties may apply if a defendant has prior convictions.

(N.Y. Penal Law §§ 70.02, 70.03 (2024).)

How New York Defines Terms Related to Assault Charges

The primary differences between the various degrees of assault include the level of harm inflicted and whether a weapon was used. Below are definitions of key terms used to distinguish the different felony assaults in New York.

Physical injuries can be impairment of a physical condition or substantial pain. Examples include bruising, bleeding, painful swelling, sprains, and cuts requiring stitches.

Serious physical injuries are those that create a substantial risk of death or cause prolonged impairment or loss of a bodily function or serious disfigurement. Examples include broken bones, gunshot wounds, nerve damage, severe lacerations, brain swelling, memory loss, hearing loss, permanently knocked-out teeth, and injuries requiring surgery.

Deadly weapons include loaded firearms, knives, daggers, blackjacks, and metal or plastic knuckles.

Dangerous instruments include items or substances that are capable of causing death or serious physical injuries by how they are used. For instance, a vehicle, baseball bat, crowbar, poison, or caustic substance can be dangerous instruments.

What Is First-Degree Assault in New York? What Are the Penalties?

First-degree assaults are some of the most serious assaults in New York.

A person commits assault in the first degree by intentionally causing someone to suffer a serious and permanent disfigurement or disability (such as loss of an eye or paralyzation). It's also a first-degree assault to cause another serious physical injury:

• using a deadly weapon or instrument and intending to cause such harm (such as by shooting or stabbing someone or hitting someone with a vehicle)
• while committing or attempting to commit or flee from a felony (such as a robbery or burglary), or
• by recklessly engaging in behavior that creates a grave risk of death and shows a "depraved indifference to human life."

"Depraved indifference to human life" isn't defined in statute. However, a court found this threshold was met when a defendant struck a victim in the head with a brick and fractured the victim's skull. In another case, a jury conviction for first-degree assault based on depraved indifference was upheld when a defendant struck a victim in the head, which caused the victim to fall, and then repeatedly kicked the victim in the head while they lay on the ground.

First-degree assault in New York carries class B felony penalties, punishable by 5 to 25 years in prison.

(N.Y. Penal Law § 120.10 (2024).)

What Is Second-Degree Assault in New York? What Are the Penalties?

Second-degree assault covers several scenarios (less serious than first-degree), primarily involving serious injuries, aggravating factors, or protected victims.

Second-Degree Assault: Serious Injuries

A person commits second-degree assault by (1) intentionally causing serious physical injury to another or (2) recklessly causing serious physical injury to another by using a deadly weapon or dangerous instrument.

Second-Degree Assault: Aggravating Factors

It's also second-degree assault to:

• intentionally cause physical injury to another by using a deadly weapon or dangerous instrument
• administer someone drugs without their consent, resulting in a stupor or impairment, or
• cause physical injury to another while committing or attempting to commit or flee from a felony.

Second-Degree Assault: Protected Victims

Finally, second-degree assault penalties apply when a defendant intentionally or recklessly causes physical injuries to the following protected victims:

• elderly individuals age 65 or older (when the defendant is more than 10 years younger)
• children and students, and
• professionals and government workers engaged in their official duties (including, but not limited to, first responders, health care workers, civil servants, government enforcement agents, school employees, transit operators and employees, and process servers).

Penalties for Second-Degree Assault

A person convicted of second-degree assault in New York faces a class D felony, punishable by a minimum 2-year and maximum 7-year prison sentence.

(N.Y. Penal Law § 120.05 (2024).)

What Are the Penalties for Assault on a Police Officer, First Responder, or Judge in New York?

Anyone who assaults a police officer, firefighter, EMT, paramedic, or judge, with the intent of disrupting their professional duties, will face class C felony penalties if that assault causes serious physical injuries. (When physical injuries resulted, the crime is second-degree assault.)

Penalties for a class C felony include 3½ to 15 years in prison—unless the defendant assaulted a police officer with a deadly weapon or instrument. In that case, the penalty increases to a class B felony for aggravated assault of a police officer, punishable by 10 to 30 years of prison time.

(N.Y. Penal Law §§ 120.08, 120.09. 120.11 (2024).)

What Are the Penalties for Gang Assaults in New York?

Penalties for gang assault apply any time a person commits an assault, aided by two or more persons, that results in serious physical injuries. The penalties for this crime depend on the intended harm. If they intended physical injuries, the crime carries class C felony penalties of 3 ½ to 15 years in prison. Intending and causing serious physical injuries is a class B felony, subject to 5 to 25 years of prison time.

(N.Y. Penal Law §§ 120.06, 120.07 (2024).)

Defenses to Felony Assault Charges in New York

A person facing assault charges can fight the charges in several ways, including by poking holes in the prosecution's case or by raising an affirmative defense.

Self-defense. A defendant might claim self-defense or defense of others if the alleged victim started the altercation or was about to. To be successful, the defendant can only use as much force as is reasonably necessary to defend against another's use or imminent use of force. Use of deadly force is only permitted if the person faced deadly force and couldn't safely retreat. New York doesn't require a victim to retreat if they are in their home or believe the aggressor is committing or about to commit a kidnapping, forcible rape, aggravated sexual abuse, or robbery. (N.Y. Penal Law § 35.15 (2024).)

Reasonable doubt. The defense might also try to poke holes in the prosecution's case by arguing the prosecution failed to prove the required intent or injuries. In this case, the defense might be able to get the charges dismissed or reduced.

Getting Legal Advice and Representation

An assault conviction could result in time behind bars and fines. If you're charged with assault or any other crime, contact a New York criminal defense attorney. An experienced attorney should be able to tell you how your case is likely to fare in court based on the facts of your case and can help you mount the strongest possible defense.