New York Criminal Lawyer Blog
Generally speaking, the practice of criminal law is neither scientific nor mathematical. While a New York criminal lawyer may be methodical in his or her dissection of legal issues and the use of prior cases decisions to prove a particular point of law, criminal law in New York is constantly morphing and growing. Whenever advocating for a particular point of law, having the most recent court rulings on the particular issue at hand is critical. It can make the difference between being charged “as is” or obtaining a dismissal or reduction of your case from a felony to a misdemeanor.
One area of New York criminal law where the principles above are illustrated is in the arena of New York Assault crimes. Essential to any New York Assault case, whether it be Assault in the Third Degree (New York Penal Law 120.00), Assault in the Second Degree (New York Penal Law 120.05) or Assault in the First Degree (New York Penal Law 120.10), is the existence of some form of injury. The threshold for this injury is “physical injury” in misdemeanor NY PL 120.00 crimes and “serious physical injury” for crimes involving the felony offense of NY PL 120.05. Whether or not the prosecution is able to prove “serious physical injury” as opposed to the lesser “physical injury” makes the difference between facing up to seven years in state prison or one year in a local or county jail such as Rikers Island (not that any institution is where you would want to be).
Before discussing a recent court decision addressing the prosecution’s failure to meet its burden of establishing “serious physical injury,” I want to take a moment to briefly define the two types of injuries.
Get kicked in the ribs resulting in a big purple welt that makes its painful to bend? That type of injury is of the lesser type. A fist to the face leaves you with a shattered eye socket that impairs your vision? That type of injury is felonious in nature. Simply put, a “physical injury” is one that causes substantial pain. “Serious physical injury,” on the other hand, is an injury that is defined as a “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.” Obviously, the difference is tremendous.
In People v. Darryl G. Tucker, 103569, NYLJ 1202538370913, at *1 (App. Div., 3rd, Decided January 12, 2012), the defendant and his accomplices were convicted after trial of numerous Assault related offenses including those that required the victim to sustain a “serious physical injury.” To that end, prosecutors established that the complainant had been stabbed eight times in addition to being punched and kicked. Clearly, prosecutors had an easy time proving their case because being stabbed must be “serious physical injury.” How could a puncture wound merely be “physical injury?”
In its review, the Appellate court determined that despite the bloody stab wounds, these injuries did not rise to the level of “serious physical injury.” At trial, a physician testified that at least seven of the stab wounds were “superficial.” As further addressed by the Third Department Appellate Court:
“The most serious wound was approximately four inches long and 2½ inches deep and transected the victim’s rectus abdominis muscle, but the bleeding was stopped with a few sutures. At the hospital, the victim was alert, never lost consciousness, was not in shock, no internal organs were punctured, his blood loss was not massive and his vital signs were essentially normal throughout his time in the hospital. The treating emergency room physician testified that the wounds collectively ‘could have caused substantial risk of death,’ but he did not further explain that opinion or state that the wounds actually did create such a substantial risk. The surgeon who sutured the wounds testified that it was ‘possible’ that the victim’s collective wounds would have been fatal if the injuries had all gone untreated. But he also testified that had the most serious wound and the nearest wound to it been left untreated, they probably would not have been fatal. Considering the victim’s actual injuries, rather than mere possibilities or what could have happened, the evidence was insufficient to establish that the victim’s injuries created a substantial risk of death.”
The Court further found that:
“The other categories of serious physical injury were also not established. The victim displayed his chest scars to the jury, and he also had scars on his back, but the record does not contain any pictures or descriptions of what the jury saw so as to prove that these scars constitute serious or protracted disfigurement (see People v. McKinnon, 15 NY3d 311, 316 [2010]). The victim testified that he took pain medication for a few weeks and continued to feel some pain thereafter, but that he was completely pain free about 2½ months after the incident. He testified that his injuries have affected his ability to throw a ball and swing a baseball bat, but he did not elaborate on these effects and he still intended to try out for his college baseball team. No medical evidence was submitted to link his diminished baseball skills to his injuries, as opposed to his reduced ability to practice after receiving his injuries. There was no proof of protracted impairment of health or function of bodily organs. Thus, the People failed to prove that the victim suffered a serious physical injury.”
The above case is one which may be extremely valuable in an Assault allegation that may appear gruesome or nasty, but in reality is something far less. Here, the defendants were successful in challenging their convictions for non-misdemeanor Assaults. While your criminal lawyer may be able to apply the same legal argument to reduce Assault charges against you, keep the following in mind. A savvy prosecutor or Assistant District Attorney will often charge more than one theory of Assault or one crime in an indictment or arrest for an offense like this. For example, some of these crimes, which are equal to or even greater than a Second Degree Assault include, Attempted Murder and Criminal Possession of a Weapon. Even if an injury is merely “physical injury,” in the right circumstances (or one might argue the wrong circumstances), an Assault charge is only one of many allegations an accused might face.
To educate yourself about the degrees of Assault and the elements of the crime, either follow the highlighted links above or search for content through the sites and blogs listed below.
New York criminal lawyers representing defendants accused of, arrested for or facing trial in violent crime cases, the former Manhattan prosecutors who founded Saland Law PC serve clients throughout New York City and the region.