New York Assault Attorney Explains Misdemeanor New York Assault Charges.
Assault charges are one of the more commonly prosecuted types of cases. You only need to flip open a newspaper to read about bar fights and domestic violence disputes. These cases can lead to the arrest of one or more parties, and the imposition of serious criminal charges. The most basic of these charges is Assault in the Third Degree. This charge is often leveled against one, both, or in some cases all of the participants in a fight where someone is (not seriously) hurt. Of course, if a participant or an alleged victim is seriously injured, the charges may rise to felony level. This post, however, is designed to give some basic facts about the simple misdemeanor charge.
The third-degree assault offense is set forth in New York PL 120.00(1), which prohibits a person from intentionally, recklessly, or with criminal negligence, causing "physical injury" to another:
§ 120.00 Assault in the third degree. A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 2. He recklessly causes physical injury to another person; or 3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor.
As you can see, the sine qua non of any assault prosecution is the element of physical injury. This is a defined term in the Penal Law, and it appears in section 10.00 as follows:
§ 10.00 Definitions of terms of general use in this chapter. Except where different meanings are expressly specified in subsequent provisions of this chapter, the following terms have the following meanings: . . . 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. . . .
Thus, they key to defending many assault cases is to determine whether the physical injury element has been properly pleaded in the charging instrument and, if so, whether the ‘injury’ suffered by the alleged victim actually rises to the level of “physical injury” as defined in the Penal Law. Thus, for example, in People v. Guzman, 260 A.D.2d 188 (1st Dep’t 1999), the defendant was convicted of assault at trial, but appealed to the Appellate Division, First Department, arguing, in part that his conviction should be overturned because the evidence elicited at trial was insufficient to sustain a charge of third-degree assault. In Guzman, however, the appellate court disagreed, and found that evidence that the alleged victim had suffered “injuries including dark reddish streaks on his face that lasted for about two weeks, cuts and bruises that lasted several days, a large blood clot inside his lip, and soreness to his lip, face and ribs lasting for several days, established the element of physical injury.” Id. Similarly, in People v. Brooks, 237 A.D.2d 139 (1st Dep’t 1997), the court sustained a conviction where the evidence sustaining the injury element was “that the complainant’s lip bled a great deal and that his mouth and lip were swollen and painful for several days established physical injury.” Id.
However, not every action taken with respect to an alleged victim will constitute an assault. As noted by the Appellate Division, First Department in People v. Rodriguez, 158 A.D.2d 376 (1st Dep’t 1990): “[w]ith respect to physical injury, this court has stated, “[T]he legal authority is clear that ‘there is an objective level below which the question is one of law'”. Id. (quoting People v Oquendo, 134 AD2d 203, lv denied 70 NY2d 959, [quoting Matter of Philip A., 49 NY2d 198, 200.]) The Rodriguez Court noted that “[s]ubstantial pain requires evidence of more than “‘pretty slaps, shoves, kicks and the like'”. Id. (quoting Matter of Philip A., supra, at 200.). In Rodriguez, the alleged victim testified that “the blows [she had suffered] hurt ‘(a) lot’. Aside from a photograph of the bruises from the blows, received and seen by the jury, there was no evidence whatsoever of the blows’ aftereffects.” Given this, the Court concluded that after examining a “photograph depicting the bruises and the record, and while the complainant may have undoubtedly experienced some pain at the time of the assault, we do not believe that she experienced “substantial pain” sufficient to support a conviction of assault.” Id. The the defendant’s third-degree assault conviction was overturned on appeal.
Of course, if the physical injury element is met, the prosecution must still prove a defendant’s intent to cause the injury. The intent element will be the subject of a subsequent post. Moreover, in order for a prosecution to be successful, it is important that the alleged victim be cooperative.
It should be noted that assaults where serious physical injury occurs or which involve the use of weapons, are typically prosecuted as felonies, not misdemeanors. If you have been charged with any kind of misdemeanor or felony assault, you should consult with competent criminal lawyers experienced in handling assault cases in New York.