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

Posted By Galluzzo and Johnson LLP || 10-May-2011

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.

 

 

 

 

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