The trial judge will now be responsible for sentencing Mr. Majors. The defense lawyers may ask that the trial court overturn the jury’s verdict, but those sorts of motions are rarely granted. Instead, the defense lawyers will need to concern themselves for now with persuading the judge to impose a non-jail sentence. The court could sentence Mr. Majors for as much as one year in jail, which he would have to serve at the notorious prison on Rikers Island. However, the court could instead impose a sentence of up to three years’ probation (which would restrict his ability to travel, even for work), or other conditions like anger management or counseling. The defense attorneys will likely propose some sort of counseling program with community service and beg the court to not sentence him to probation so that he can travel to filming locations without interruption or complication. Obviously, this conviction may ruin his Hollywood career, as certain projects have already been put on hold or suspended as producers awaited the outcome of this trial.

If one had to predict, one would not expect the court to impose a jail sentence in a reckless assault case. First, Mr. Majors has no criminal history, which tends to militate strongly against jail sentences in relatively minor cases. Furthermore, the injuries sustained by Mr. Jabbari appeared to be relatively minor on the spectrum of assault cases; certainly, many assault trials involve much more serious injuries resulting in hospitalizations and/or permanent disabilities. Mr. Majors is a prominent person and the court might want to make an example of him, but he is also potentially able to do something positive for the community, as well. So, I would predict some sort of combination of anger management and community service, along with an order of protection in favor of Ms. Jabbari. The big question really is whether Mr. Majors will be sentenced to a period of probation, which would be a huge hindrance for his career.

The verdict is somewhat surprising here. There was some evidence that tended to suggest that Mr. Majors was a victim of Ms. Jabbari’s aggression. Indeed, he filed a report against Mr. Jabbari that did originally result in her arrest, as well. Moreover, an Uber driver who shuttled the two of them together about the time of the assault offered the opinion that Ms. Jabbari was initiating the conflict. It’s always difficult to second-guess strategic decisions made by attorneys in the trial, but Mr. Majors’ decision not to take the stand almost certainly cost him. Courts also instruct juries not to infer guilt from a defendant’s decision not to testify, but the jury had to perplexed by the fact that a charismatic stage and film actor would sit silently at the defense table and let his attorney make the case that he was a victim, without saying it himself.

Mr. Majors will be able to pursue an appeal if he so chooses, but appeals courts are loath to overturn verdicts based upon the facts. Typically, questions of guilt or innocence are entrusted to the jury, as are assessments of witness credibility. Those decisions usually remain undisturbed. If the defense can make the argument that the trial court made an improper legal ruling that had a material effect on the outcome, then they may have a chance on appeal. But there’s nothing in the record here that stands out as particularly controversial, in terms of legal decisions made by the court during the trial. So, it is more likely than not that this judgment will be affirmed on appeal.

The author of this article, Matthew Galluzzo, is a criminal defense attorney and former Manhattan prosecutor. As a prosecutor, he was a supervisor in the domestic violence bureau of the New York County District Attorney’s Office, the same office that prosecuted Jonathan Majors in this case. He was worked as an appellate prosecutor responding to criminal appeals, and later prosecuted murders and sex crimes cases. In 2023, in recognition of his service to the French government and his successful representation of dozens of French citizens, he was knighted by the nation of France and is now a Chevalier in the French Order of Merit.

If you or a loved one have been arrested and charged with misdemeanor assault or forcible touching in New York City, you should strongly consider contacting the experienced team at the Law Office of Matthew Galluzzo PLLC. Their lead counsel is a former Manhattan prosecutor with considerable experience representing foreign citizens, with a strong track record of success.

This interesting and unexpected exchange provides a fun example to consider New York criminal law: What charges, if any, might have applied to this slap had it happened onstage in New York?

The most significant plausible charge here would be the Class A misdemeanor or Assault in the Third Degree (Penal Law Section 120.00). That statute makes it a misdemeanor punishable by up to a year in jail to intentionally cause physical injury to another person. Here, however, it does not seem that Chris Rock suffered any physical injury significant enough to justify the charge. Indeed, although he was obviously dazed and it appeared to be a fairly hard slap, Rock carried on with his emcee duties and even made a few quips about what had happened. A physical injury, as defined by New York law, is supposed to be “substantial pain” and/or “impairment of a bodily function.” Surely Rock felt some pain from the slap, but it appears to have been too temporary to have really justified an assault charge under New York law.

Oftentimes, in situations like this, where the strike is forceful but the injury is fleeting, the defendant in New York gets charged with Attempted Assault in the Third Degree (Penal Law Sections 110/1120.00), which applies where the person tried to hurt the victim but did not actually succeed. That is a class B misdemeanor that could apply to what Smith did. Smith might argue that because he used an open hand, he only meant to send a message but did not intend to actually injure Rock. A closed fist punch, on the other hand, would have made such an argument more difficult.

Certainly, this act would be sufficient for a charge of Harassment in the Second Degree, in violation of Penal Law Section 240.26. That charge applies to any unwanted or offensive touching of another person. A conviction for this offense does not technically give someone a criminal record, as it is a violation, and violations are not classified as crimes under New York state law. However, this is a potential maximum penalty of 15 days in jail for this offense. It seems plain that if Smith had smacked Rock in New York and were arrested and charged with this offense, it would be virtually impossible to defend against a conviction. That being said, people without criminal records charged with this offense are typically able to resolve these cases without jail; counseling and/or community service and/or anger management are more typical punishments.

If you or a loved one are a Hollywood actor charged with smacking another celebrity onstage before a live television audience, you should strongly consider contacting Matthew Galluzzo, an experienced criminal defense attorney and former Manhattan prosecutor.

So what constitutes substantial pain and what does not? The Court of Appeals has found sufficient evidence of substantial pain in the following instances:

• Where victim was struck with a baseball bat resulting in discoloration, swelling and lost sensation to arm;
• Where victim sustained a 1.5 inch laceration from a bullet which was redressed at the hospital and which was still oozing when treated;
• Where lacerations to eye and hand resulted in “permanent spots” on hand and “terrible pain” after having been tripped, sat on, kicked and cut with knife;
• Where victim lost consciousness, sustained contusions to neck, experienced pain, had difficulty swallowing and was prescribed medicine after being choked; and
• Where suffered pain and symptoms for three to five weeks from a concussion and laceration to head, bruises and sprains, and a bruised and swollen foot.

It is important to note that in each case where substantial pain was found to exist, the Court pointed to some objective evidence to support the finding.

Conversely, the Court of Appeals has ruled that the following allegations set forth were insufficient to establish substantial pain:

• Where incidental reference to a black eye without any development of its appearance, seriousness, accompanying swelling or suggestion of pain was made;
• Where victim cried, felt an unspecified degree of pain and sustained a red mark after being hit twice by defendant;
• Where victim suffered a one centimeter cut above her lip; and
• Where the victim experienced swelling and redness which persisted for a week, without a specified level of pain.

While the determination of the existence of “substantial pain” is generally one for a jury, the prosecution is not entitled to simply plead the existence of “substantial pain” in a conclusory manner in order to escape sufficiency scrutiny. In other words, the injury must stand up to some form of objective scrutiny. For this reason, it is important for the attorney of a defendant charged with assault to review the charging document for sufficiency, and prepare a detailed motion to dismiss or reduce the charges where appropriate. Most of the cases we handle involve allegations which fall somewhere in between the two categories described above. Since each case is different, it is up to us to craft a convincing argument as to why a particular case should fall in the second category as opposed to the first. The success of such a motion can greatly alter the trajectory of a criminal case, and not only reduce the top count maximum exposure by 9 months in jail (from a class “A” to a class “B” misdemeanor) but also convince a prosecutor to make a more favorable plea offer or even dismiss the criminal charges entirely.

If you have been accused of committing the crime of assault in any degree, it is imperative you consult with an experienced lawyer immediately. The stakes are high in these cases and prosecutors take them very seriously. They carry the potential for jail as well as a permanent criminal record if not properly defended. Attacking the sufficiency of the charges is one of several strategies our team of former prosecutors employs when fighting for our clients, so don’t hesitate to reach out to us if you find yourself accused of this crime.

Assault in the Third Degree lies in Penal Law 120.00, which states that a person can be guilty of that charge in the following three situations:

1. When, with intent to cause physical injury to another person, he or she causes such injury to such person or to a third person; or

2. He or she recklessly causes physical injury to another person; or

3. With criminal negligence, he or she causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

The vast majority of alleged assaults fall within the ambit of subsection (1), however subsection (2) is usually charged as an alternate theory to the same conduct for which subsection (1) applies. Thus, a person who punches another person causing some form of injury will usually be charged will violating PL 120.00(1) (for intentionally causing physical injury) and PL 120.00(2) (for recklessly causing physical injury). The common denominator for all three subsections of Assault 3 is “physical injury,” which is defined as “impairment of physical condition or substantial pain.

As defense attorneys, we are charged with the duty of attacking our cases from every viable angle. This may not only include a challenge to the allegation that our client was actually the person who did the assaulting, but also a challenge to the “sufficiency” of the allegation of injury. In other words, we argue that the injury alleged to have occurred does not even rise to the level of a misdemeanor, regardless of who caused it. A more specific challenge we might employ involves an assertion that the prosecutor’s allegations do not legally make out “substantial pain.” (Similar arguments are made up the chain as the threshold level of injury increases for Assault 2 and 1, respectively).

How is this done? When a defendant is formally charged with assault, he/she is arraigned on the charges and their attorney provided a copy of the charging instrument, usually referred to as the criminal court complaint. This complaint contains a brief summary of allegations which serves the purpose of putting the defense on notice of the nature of the case. For example, a complaint might state, in relevant part, that the defendant was observed “punching (the victim) several times about the head with a closed fist thereby causing (the victim) to sustain a bloody lip, a laceration below the eye and substantial pain.” A less severe complaint might state that the defendant was observed striking the victim numerous times “with his hand, causing redness to the (victim’s) face and substantial pain.”

Of critical importance is the fact that the Court of Appeals (New York’s highest Court) has held that a victim’s subjective description of an injury will not always be sufficient to support a finding of physical injury, and that injuries are to be looked at objectively as well. This rule exists to prevent a complaint stating the “victim” experienced substantial pain after being slapped with a feather from sufficiently stating a case for assault.

So which types of cases have been held to have sufficiently plead physical injury and which have not? We discuss that and more here in Part II.

Recently, an unfortunate tragedy occurred in Queens resulting in a man’s death. A tourist from Florida named Sandor Szabo requested an Uber to take him from a family member’s wedding. In an apparently intoxicated effort to find his Uber, Mr. Szabo banged on several nearby cars with his fists. He eventually banged on the car belonging to Jamill Jones, an assistant coach for the Wake Forest University men’s basketball team. Mr. Jones got out of his car and punched Szabo one time in the face. Szabo fell to the ground and hit his head on the pavement. Jones drove away. Szabo was taken to the hospital and later died from the injury. See “Wake Forest coach could face murder charges,” NY Post, August 10, 2018.

Jones was identified and surrendered himself to police. As of yet, he has only been charged with a misdemeanor assault in violation of Penal Law Section 120.00 (Assault in the Third Degree, to be precise). That charge makes it a crime, punishable by up to one year in prison, to intentionally cause physical injury to another person. This is a typical charge for a single punch to the face. The fact that Mr. Szabo tragically died, however, makes the situation more complicated from a legal perspective. The New York Post article suggests that Mr. Jones could face murder charges, but that is perhaps imprecise or incorrect. Murder charges (such as the most common charge of Murder in the Second Degree, in violation of Penal Law Section 125.25) would require a showing that Jones not only killed Szabo, but that he intended to kill Szabo. That seems unlikely given that he only punched Szabo once.

There is precedent for these situations, as this is not the first time in New York that a person has been arrested for killing someone with a single punch; indeed, the author of this article has seen several such unfortunate cases in his days as a Manhattan prosecutor. Normally, one of two things happens: either the defendant is charged with a misdemeanor assault, as Jones has been here, or the defendant is charged with Manslaughter in the Second Degree, in violation of Penal Law Section 125.15. Manslaughter in the Second Degree is a Class C felony with a maximum possible sentence of 15 years, though probation and non-jail sentences are possible. See Penal Law Sections 60.01 and 65.00. Manslaughter in the Second Degree requires a showing that the defendant recklessly caused the death of another person. “A person acts recklessly with respect to a result or to a circumstance…. When he is aware of and consciously disregards a substantial and unjustifiable risk that such result will or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” Penal Law 15.05(3).

The question thus becomes: when he raised his fist to punch Szabo, did it occur to Jones that he might kill Szabo with a single punch? Most people probably don’t think that one punch will kill, and that is the dilemma facing prosecutors in these cases. Certainly, the prosecutors will feel pressure from the victim’s family and the community to prosecute Jones to the fullest extent of the law. However, it will likely be extremely difficult to secure a felony conviction in this case. Mr. Jones could still receive a sentence of one year in prison for the assault, not to mention the misdemeanor crime of Leaving the Scene of an Accident (VTL Section 600) that he will surely face, as well. But, we expect that he will not even be charged with manslaughter under the circumstances.

If you or a loved one have been arrested or investigated for an accidental homicide, you should strongly consider contacting the experienced criminal defense attorneys at the Law Office of Matthew Galluzzo. Their team of former Manhattan prosecutors have both prosecuted and defended homicide cases, and can bring their balanced understanding to your defense team.