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What is Assault in NYC?

The term “Assault” charges cover a range of crimes in New York, many of which are called battery in other states. New York Assault charges range from serious felonies to misdemeanors, depending upon a variety of factors.

Only one of the three degrees of Assault in New York is a misdemeanor: Assault in the Third Degree. Both Assault in the Second Degree and Assault in the Third Degree are felonies.

The degree of the criminal charges, whether Assault, usually depends on two factors. The first factor is the type of alleged injury.

There are two types of injuries: a Physical Injury and a Serious Physical Injury. The second factor is if a weapon was allegedly used in allegedly causing the Physical Injury or Serious Physical Injury.

Degrees of Assault Charges in NYC

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Physical Injury vs. Serious Physical Injury in New York

Assault Lawyer in New York City
Assault charges in New York typically involve two different levels of injuries a Physical Injury or a Serious Physical Injury. Both terms are defined in New York law. Under Penal Law Section 10.00(9), Physical Injury means:

Impairment of physical condition or substantial pain.

Under Penal Law Section 10.00(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.

The typical criminal complaint that pleads an Assault charge alleges that a defendant made contact with another person by a punch that caused “substantial pain” and/or another fact such as redness, a laceration and swelling to a particular body part.

Courts have held that substantial pain is more than slight or trivial pain, but the pain does not need to be severe or intense to be substantial. That means that with Assault charges in New York, alleged injuries including a cut or a bruise could fall under the definition of substantial pain. Courts have also held that a Physical Injury does not result from petty slaps, shoves, kicks and the like.

The threshold for a Serious Physical Injury is more substantial than a Physical Injury. The requirement of “protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” is a much higher standard.

Courts have held that a long-term injury that affects an organ, which includes a person’s skin, is necessary to establish a Serious Physical Injury. Some examples where Courts have found that a person sustained a Serious Physical Injury include:

  • Bullet fragments in a person’s leg after he was shot, he could feel a fragment poking out, he had to use crutches for 2 months and was limping for a time thereafter, the injury continued to disturb him after 4 years and the injury precluded certain activities
  • A total collapse of the left lung and partial collapse of the right lung
  • A deep puncture wound in an upper lip that caused nerve damage, resulting in numbness and sometimes a lack of control over his upper lip, disfigurement for 2 months from the wound and a visible scar years later that followed reconstructive surgery
  • Severe injuries to a person’s back and right eye that affected him for nearly 1 year after the incident
  • 2 knife cuts, 1 of which was to the neck, required 120 stitches and resulted in a substantial scar on the neck

Some examples where Courts have found that a person did not sustain a Physical injury include:

  • A superficial stab wound that required 1 day in the hospital and despite complaints of continuing discomfort, there was no medical evidence of an injury that caused extended health impairment
  • A slight displacement and clicking of the jaw that was not permanent and was expected to be resolved by conservative treatment within 6 months
  • 2 scars of moderate size on a person’s inner forearm

Weapons and Assault in New York City

When a person is arrested for an Assault charge in New York the alleged use of a weapon to cause a Physical Injury or Serious Physical Injury aggravates the degree of the Assault.

If a Physical Injury was allegedly caused by a person’s hand, which is not defined as a weapon, the likely charge is Assault in the Third Degree. However, if a weapon allegedly caused a Physical Injury, then the charge will likely be Assault in the Second Degree. Finally, if the weapon allegedly caused a Serious Physical Injury, then the likely charge will be Assault in the First Degree.

Weapons in New York are called either a deadly weapon or a dangerous instrument. Under Penal Law Section 10.00(12) deadly weapon means:

Any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles.

Under Penal Law Section 10.00(12) dangerous instrument means:

Any instrument, article or substance, including a ‘vehicle’ as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to
be used, is readily capable of causing death or other serious physical injury.

In New York, deadly weapons include firearms and a long list of specific weapons. On the other hand, a dangerous instrument can be almost anything that could at least cause a Serious Physical Injury. That includes any sharp object, a person’s shoe and common household objects like the handle of a broom.

Self Defense or Justification: Defenses to Assault Charges in New York

The most significant defense to an Assault charge in New York that a person was defending himself, herself or another person. This is commonly known as self defense. New York uses the legal term Justification, which is defined in Penal Law Section 35.15, and means self defense.

In New York, justification is an affirmative defense, which means that the defense must raise the issue and the burden of proof is by a preponderance of the evidence.

In contrast to the high standard of the prosecution’s burden of proof beyond a reasonable doubt, preponderance of the evidence means only 51%. In fact, when justification is a credible defense, a skilled defense attorney may be able to persuade a prosecutor to dismiss a case entirely prior to a trial or to offer a favorable disposition or plea bargain.

Generally speaking, there are two tests for justification to apply to an Assault charge when a person uses physical force to defend oneself or another person:

  1. A subjective test; and
  2. An objective test.

First, a person charged with Assault must have actually believed that another person was using or was about to use physical force against him, her or a third person and that the charged person’s own use of physical force was necessary to defend himself, herself or a third person.

Second, a reasonable person in the position of the person charged with Assault, knowing what he or she knew and being in the same circumstances, would have had those same beliefs. It does not matter that the person charged with Assault was or may have been mistaken in his or her belief, provided that such belief was both honestly held and reasonable.

A person who defends himself, herself or a third person, does not have a duty to retreat before resorting to physical force, provided the person actually believed that physical force was going to be used against him or her and the belief was reasonable. However, in New York self defense or Justification where deadly physical force is used is treated somewhat differently.

Under New York’s of Justification in Assault cases, a person can use deadly physical force when he or she believes that the imminent use of force against himself, herself or a third person rises to the level of deadly physical force. Deadly physical force means “physical force which, under the circumstances in which it is used, is readily capable of causing death or other Serious Physical Injury.”

In addition, in New York there may be a duty to retreat before resorting to deadly physical force. With Assault charges, Justification does not apply if the person charged knew that he or she could with complete safety to himself, herself or the third person could have avoided the necessity of using deadly physical force by retreating. However, a duty to retreat does not apply in a person’s home, even if it can be done safely.

The one major exception to Justification defenses against New York Assault charges is if the person charged was the initial aggressor. Under New York law, initial aggressor means:

The person who first attacks or threatens to attack; that is, the first person who  uses or threatens the imminent use of offensive physical force.

A person charged with Assault may not be the initial aggressor even if they struck the first blow or inflicted the first wound if a person reasonably believed that force was about to used against him, her or a third person.

Assault charges in New York are fact specific. Whether or not Justification applies in a case depends on the specific words and or actions of both parties, the person who was charged and defending himself, herself or a third person and the attacker.

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Orders of Protection in New York Assault Cases

When an Assault case involves Domestic Violence or the defendant and victim know one another, the District Attorney will typically request an Order of Protection. This Order of Protection will usually remain in effect as long as the case is pending and it will prohibit contact and communication of any kind (including via social media) with the protected party or parties.

In most cases, an Order of Protection will be part of the final disposition of the case and will last for a period of years thereafter.

Sentencing in Assault Cases

A variety of factors impact the outcome of a felony Assault charge, including:

  • The strength or weakness of the prosecution’s case;
  • The defendant’s criminal history;
  • The extent of the injury; and
  • The claimed facts of the alleged Assault

Thus, the possible outcomes range from dismissal or a plea bargain to a misdemeanor charge and even several years in prison.

Hate Crimes and Assault: What is a Hate Crime in NYC?

An Assault or other crime will be charged as a hate crime if there is evidence that the alleged act was committed because of a belief about the complaining witness’s race, color, national origin, ancestry, gender, religion, religious practice age, disability or sexual orientation.

Note that it does not matter whether or not that belief is accurate: a defendant who Assaults a person of Middle Eastern ancestry on the assumption that he or she is Muslim will be guilty of a hate crime even if it turns out that the complaining witness was actually Christian or Hindu or even agnostic.

Likewise, an Assault triggered by a rumor that the complaining witness is gay will still constitute a hate crime no matter the sexual orientation of the complaining witness.

Hiring a New York City Assault Attorney

The criminal justice system is complex and can be intimidating and confusing, particularly in New York City. Hiring the right NYC Assault defense attorney is crucial in achieving the best possible outcome when one is charged with Assault in New York.

The best New York City Assault lawyer is experienced, aggressive and knowledgeable. As a former prosecutor in Manhattan, I have the experience and knowledge from both prosecuting Assault charges, and aggressively defending people against Assault charges in New York.

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Speak With a NYC Assault Attorney Today

If you or a loved one is charged with Assault in New York City, we’re here to help.

Contact The Law Firm of Andrew M. Stengel

Contact us via the live chat below, through our contact form here, or call us at  (212) 634-9222. Initial consultations are free and confidential, and you will speak with Andrew M. Stengel directly.

Our offices are located at 11 Broadway, Suite 615, New York, NY 10004, and we handle cases throughout New York City, Nassau, Westchester and the surrounding counties.

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