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What is Assault in the Third Degree? The Basics (Part 2)

In this continuation from Part I of our discussion on assault, we discuss the sufficiency of allegations of physical injury.

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.


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