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.