Misdemeanor Assault in New York

The basics of third-degree (misdemeanor) assault charges and penalties in New York.

By , Attorney · Mitchell Hamline School of Law
Updated April 29, 2024

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 third-degree assault in New York, a misdemeanor.

Understanding Assault Charges in New York

Assault and related crimes in New York are defined differently than in many other states.

What Is an Assault in New York?

Many states consider assault to be an attempted or threatened harm, while battery is any offensive touching or harm. New York law defines assault as causing physical injuries to someone. To be an assault, the acts must go beyond striking, shoving, or kicking someone to harass, annoy, or alarm them. These acts are considered harassment. Placing someone in fear of imminent harm falls under the crime of menacing in New York. (New York doesn't have a battery crime.)

Assault Charges in New York

New York law divides general assault crimes into three degrees. Third-degree charges carry misdemeanor penalties, whereas first- and second-degree charges are felonies.

Assaults resulting in physical injuries to a victim will generally carry third-degree charges unless the defendant targeted a protected victim or recklessly used a weapon. These acts, along with assaults resulting in serious physical injuries, are felony assaults.

Physical injuries refer to any impairment of a physical condition or substantial pain. Examples include bruising, bleeding, painful swelling, sprains, and cuts requiring stitches. If the resulting injuries are more serious (such as broken bones or gunshot wounds), the assault is likely a felony.

Protected victims. Assaults involving protected victims are generally felony offenses (even if only physical injuries result). Some examples of protected victims include elderly individuals age 65 or older, children, students, and a long list of professionals or government workers engaged in their official duties.

What Is Third-Degree Assault in New York?

A person commits third-degree assault—a misdemeanor—by:

  • intentionally or recklessly causing another physical injury, or
  • negligently causing physical injury to another with a deadly weapon or dangerous instrument.

To be convicted of third-degree assault (rather than harassment), the prosecutor must show the defendant's conduct amounted to more than petty slaps, kicking, and the like committed out of meanness.

Definitions Relating to Third-Degree Assault

Third-degree assault can result from a defendant's intentional, reckless, or criminally negligent acts involving a weapon. Here's how these mental states and instruments are defined.

Culpability. Intentional acts are those where the defendant's objective was to do harm (such as punching someone). Recklessness refers to a person who acted in conscious disregard of a substantial risk of harm (like throwing a glass bottle at someone and it shatters). Negligent acts are criminal if the person should have realized their actions presented a substantial risk of harm (such as speeding around a curve and flipping a car).

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 a dangerous instrument.

Examples of Third-Degree Assault

Examples of misdemeanor assault in New York could include deliberately punching someone or shoving them down the steps. Forcefully pushing one's way through a crowded bar and recklessly injuring someone when they fall and sprain a wrist could be another example. Shooting a gun into the air during a celebration would probably be negligent assault if a bullet grazed someone on the way down. Even if the person had no idea that bullets could injure on their way down, the average person would probably be aware of that risk.

What Are the Penalties for Third-Degree Assault in New York?

Third-degree assault starts as a misdemeanor. But, under certain circumstances, this crime carries felony penalties.

Misdemeanor Penalties for Third-Degree Assault

A person convicted of third-degree assault faces class A misdemeanor penalties, punishable by up to 364 days in jail and a $1,000 fine.

Enhanced Felony Penalties for Third-Degree Assault

In certain instances (not amounting to first- or second-degree assault), the law provides enhanced felony penalties for third-degree assault. All of the enhanced penalties below are class E felonies, punishable by up to four years of prison time.

Hate crimes. A person who commits third-degree assault against another based on their actual or perceived race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability, or sexual orientation will face felony penalties. (N.Y. Penal Law §§ 485.05, 485.10 (2024).)

Aggravated family offense. Prosecutors can also seek enhanced felony charges if the person commits a misdemeanor assault against a family or household member and has a similar prior conviction. (N.Y. Penal Law § 240.75 (2024).)

Aggravated assault of a child. A second conviction for third-degree assault when the victim is younger than 11 is a felony-level offense. (N.Y. Penal Law § 120.12 (2024).)

Defenses to Misdemeanor 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. (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.

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