Penal Law Section 120.05: Assault in the Second Degree (MTA and subway employees)

Posted By Galluzzo & Arnone LLP || 25-Oct-2012

Recently, a video of a fight between a bus driver and a passenger in Cleveland has gone viral and sparked a great deal of debate. To summarize, a passenger on a Cleveland bus captured cell phone footage of a male municipal bus driver in a profane argument with a female passenger that had refused to pay the fare. The argument escalated when the passenger spat on the bus driver and struck him while he was sitting in the driver seat (it is unclear whether the bus was in motion at that moment). The bus driver then stood up and unloaded a fierce uppercut to the passenger’s chin. Both parties have since been arrested in connection with the incident. The bus driver is now charged with assault and the passenger with the lesser charge of disorderly conduct.

However, if this incident had occurred in Brooklyn, for example (or somewhere else in New York), the more serious charges would have probably been leveled against the passenger. This is because it is a felony for a person to assault a municipal bus driver, whereas it is only typically a misdemeanor for a bus driver to strike a person. Specifically, Penal Law Section 120.05 (Assault in the Second Degree), subsection 11, makes it a Class D violent felony to “cause physical injury to any train operator, ticket inspector, conductor, 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… while such employee is performing an assigned duty on, or directly related to, the operation of a train or bus.” Class D violent felonies carry potential sentences from 2 1/3 to 7 years in jail, and an attempt at this crime would be a Class E nonviolent felony.

In short, it is a felony to assault or attempt to assault a bus driver or subway worker while he or she is on the job. The charge is essentially the same as it would be for an assault on a police officer, paramedic, EMT or fireman (Penal Law Section 120.05[3]), or a reckless assault causing serious physical injury by an adult on a child less than 11 years old (Penal Law Section 120.05[8], or an intentional assault by an adult upon a child less than 7 years old (Penal Law Section 120.05[9]), or an assault on a school employee on school grounds (Penal Law Section 120.05[10]).

If you or a loved one have been accused of a Assault in the Second Degree, you should consider contacting an experienced criminal defense attorney immediately.

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