Third Degree Assault, New York Penal Law 120.00, is a relatively straight forward offense. Although the application and interpretation of the law always has its wrinkles, one is guilty of Assault in the Third Degree when one intentionally, or recklessly, causes physical injury to another. Physically injury is generally identified as some form of substantial pain. A class “A” misdemeanor with a sentence of up to one year in jail, PL 120.00 is the lowest of the violent New York Assault type crimes. A much more serious offense handled by prosecutors and criminal attorneys that is punishable by as many as seven years in prison, Second Degree Strangulation, New York Penal Law 121.12, occurs when a person commits the crime of Criminal Obstruction of Breathing or Blood Circulation, New York Penal Law 121.11, and thereby causes stupor, loss of consciousness or any physical injury.
I the realm of criminal prosecutions in New York City’s Criminal Courts and New York State’s local Town and Village Courts, one of the most common offenses that are pursued by police and prosecutors is the crime of Third Degree Assault pursuant to New York Penal Law 120.00. This crime can be quite a serious offense even where the degree of an injury is well below the felony threshold. For example, one can punch another person square in the face and break that person’s nose or strike someone hard enough to cause an ugly laceration and welt, but the crime will remain a misdemeanor Assault int the Third Degree. Whether that injury sustained causes a bloody hemorrhage or only a small bruise, as long as there is physical injury and substantial pain the accused will face up to one year in jail on an NY PL 120.00 arrest or conviction (NOTE: In New York City – Manhattan, Brooklyn, Queens, etc., first time offenders may be issued a NYC Desk Appearance Ticket (DAT) when arrested, but the charge and potential punishment is no less grave).
Due to the direct and collateral consequences to an arrest for PL 120.00 even without a conviction, it is critical to collect evidence and move forward with your defense at the beginning of the process. While one way your criminal lawyer will pursue your defense may be through speaking with witnesses (even the complainant) or securing videos or photographs, another means of attack is through the charging document (called the criminal court complaint or criminal court information). The following legal decision addresses one such attempt to challenge the legal sufficiency of an information while also shedding some light on how prosecutors can pursue criminal cases without the assistance of the victim him or herself.
On numerous occasions I have addressed how prosecutors can overcharge crimes or think out of the box to get to a particular result. Sometimes it is warranted and other times it is not. Similarly, sometimes the end result is proper while other times it is a violation of the law. One of the areas where prosecutors get creative is in the arena of New York weapon crimes. More specifically, when an accused uses a dangerous instrument. Not necessarily unique to this area of law, one of the reason why New York criminal lawyers often see Assistant District Attorneys handling cases in this way is because if a defendant commits a misdemeanor Assault (Third Degree Assault pursuant to New York Penal Law 120.00) and does so with a dangerous instrument, the crime can be kicked up to a felony assault (Second Degree Assault pursuant to New York Penal Law 120.05). Similarly, even if a defendant acts recklessly and causes a serious physical injury with a dangerous instrument (not intentionally) felony conduct could be prosecuted. Why does all of this matter? Not only is a felony a more serious crime in terms of a criminal record, but a misdemeanor offense is punishable by as much one year in jail while the felony crime is punishable by up to seven years in prison.
In People v. McElroy, 55-2013, NYLJ 1202644557795 (Sup., Kings Ct’y Decided February 20, 2014) the defendant, who was intoxicated at the time, got into a fare dispute with a taxicab driver. The defendant paid the fare with a credit card, then exited the vehicle without signing the credit card receipt. The driver also exited and blocked defendant’s movement with outstretched arms insisting that defendant sign the receipt. Evidence at trial showed that defendant refused to sign and instead punched the driver in the head once or twice. The driver fell backwards, hit his head on the concrete sidewalk, and sustained fractures and severe brain injury. At the time of this decision, the driver was on life support and unresponsive. The jury convicted defendant of Assault in the Second Degree, by recklessly causing serious physical injury by means of a dangerous instrument (Penal Law §120.05(4)). The defendant appealed.
Prosecutors routinely (for better or worse) throw every charge they can at a defendant with the hope that something sticks. Maybe the evidence is overwhelming. Maybe…not so much. Whatever the charges or allegations may, if one count cannot be proven beyond a reasonable doubt, maybe another can. It is one thing for a prosecutor to charge different crimes (for example, charging an individual for possessing a weapon and using it or stealing money and possessing the same). However, can prosecutors charge different theories of one’s mental state? More specifically, can a defendant be charged with both intentional and reckless acts in the same complaint, for the same act? In People v. Alejo, NYLJ 1202644557857 (Crim., BX, Decided February 19, 2014), the Supreme Court answered that question with a resounding “yes.”
The evidence in Alejo case established that Police Officer Gelband observed the defendant, who was driving a motor bike, weaving in and out of traffic and around pedestrians, driving the wrong way, and ignoring stop signs. The facts also showed that pedestrians ceased walking on the street whenever the defendant drove near them. Finally, when the officer instructed the defendant to stop driving, the defendant ran over the officer’s foot causing injury to his foot, as well as causing the officer to experience annoyance, alarm and fear. As a result of his actions, defendant was charged with two counts of Assault in the Third Degree (PL Sec. 120.00(1) and (2)), and one count each of Reckless Endangerment in the Second Degree (PL Sec. 120.20), Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01(2)), Harassment in the Second Degree (PL Sec. 240.26(1)), and Disorderly Conduct (PL Sec. 240.20(7)).
Every New York criminal lawyer, from the “best” to the those who lag behind him or her, have one basic goal when representing their respective clients in an arrest for any crime. Certainly service is key, but most clients would be satisfied, if not elated, if his or her criminal attorney could obtained a dismissal of an indictment or misdemeanor information regardless of the service the attorney provided (I am not advocating poor service!). There are often numerous grounds for which a New York criminal defense attorney may seek dismissal. The Grand Jury presentation was not sufficient or the proceeding was tainted. Alternatively, the information or complaint contained hearsay or was not facially sufficient. If the case cannot be dismissed in its totality, the defense may seek to have the crime charged reduced to an attempt. The reason this is pursued is because an attempt to commit a particular crime in New York reduces the level or degree of the crime from what it would be if successfully completed.
In People v. Zacatenco-Romano, 10869-12, NYLJ 1202640266754, at *1 (Sup., KI, Decided January 22, 2014), the defendant motioned for dismissal of Attempted Assault in the First Degree (PL 110/120.10) on the grounds that the Grand Jury evidence was insufficient. Seeking a dismissal as opposed to a reduction (you can’t attempt an a crime that you are accused of attempting), Zacatenco-Romano is still valuable in identifying what constitutes an attempt to commit an offense and what is sufficient before a Grand Jury in New York.
Harassment in the Second Degree, New York Penal Law 240.26, is routinely an offense that is tacked onto a complaint alleging Third Degree Assault. While Assault in the Third Degree (New York Penal Law 120.00) is one of the most serious misdemeanor crimes, Harassment in the Second Degree has significant consequences, but is far less significant. Having said that, “less” significant” does not mean “insignificant.” In fact, a conviction for violating NY PL 240.26 not only carries a possible jail sentence, but on the more practical side of things there are sealing issues that permit this offense to linger on your “criminal record” for employers and government agencies to later see.
Briefly, you are guilty of Harassment in the Second Degree when you intentionally harass, annoy or alarm another person and you (1) strike, shove, kick or otherwise subject that person to physical contact or threaten to do the same. Alternatively, you (2) follow that person around public places or (3) you engage in a course of conduct or repeatedly commit acts that alarm or annoy that other person without any legitimate purpose. The purpose and issue that will be addressed in this blog entry is what kind of contact constitutes a violation of the first subsection of New York Penal Law 240.26(1), Harassment in the Second Degree?
One of the most common questions that arise in the practice of New York criminal law from the perspective of both a prosecutor (Assistant District Attorney) and a criminal defense attorney or lawyer is when an assault is an Assault (note the big scary capitalization of the word). That’s right. When does an accused’s conduct go from noncriminal in nature to actions that are legally sufficient to establish the crime of Assault in the Third Degree?
Is a slap different than a closed fist punch in the eyes of the New York Penal Law? What about a shove, kick or pinch? Do any of these constitute a misdemeanor offense punishable by as much as a year in jail? At what point has your conduct and resulting injury reached the level of New York Penal Law 120.00, Assault in the Third Degree? Generally speaking, you are guilty of NY PL 120.00(1) if and when you intentionally cause physical injury to another person, but how far are courts willing to go under pressure by Assistant District Attorney’s to prosecute those they believed have committed a crime?
Everyone is scared of guns. After all, some horrific incidents have corroborated why many lawmakers in New York believe the strict firearm laws of the New York Penal Law are necessary. While there is little doubt that firearms in the wrong hands are overwhelmingly dangerous and laws must be enacted and enforced to protect the public and prevent the misuse of weapons, a blanket fear of firearms does not necessitate over zealous prosecutions. Just as the owner of a lawfully registered out of state firearm can be charged with a felony for attempting to legally check his weapon at a NYC airport (JFK Airport, for example), other individuals may be charged with weapon crimes that really are not consistent with the hyper-technical conduct of the accused.
In People v. Evans, 2013 NY Slip Op 1950 – NY: Appellate Div., 4th Dept. 2013, a judge convicted the defendant for Assault in the Second Degree where the crime was based in the reckless possession of a weapon. There, the gun in question was a saw offed shotgun that accidentally misfired and struck another person. Pursuant to New York Penal Law 120.05(4), it is punishable by as much as a seven years in prison if you “recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.” The question before the Appellate Court was not whether the possession of the weapon in and of itself was illegal, but whether or not it was used in a reckless manner resulting in the serious physical injury.
You slap someone in the face. Certainly its not nice, but is it a Third Degree Assault in New York? You punch someone in the gut. Again…not nice…but is it an Assault in the Third Degree? You kick someone in the ribs (maybe they deserved it and you were merely defending yourself this time!). Ouch….but should you be arrested for violating New York Penal Law 120.00(1)? An “A” misdemeanor that will smack you with a lifelong criminal record, while you may need a criminal lawyer to counsel you through the criminal process in New York, you certainly don’t need a criminal defense attorney to tell you that an arrest for PL 120.00 is potentially a life changing matter.
Whether you are issued a New York City Desk Appearance Ticket (commonly called a DAT or an appearance ticket) for PL 120.00 or you spend 24 hours waiting in jail to see a judge, the law of Third Degree Assault is fairly straight forward on its face. That is, if you intentionally (there is also a reckless provision) cause physical injury to another person, you are guilty of misdemeanor Assault. Seems fairly easy for a prosecutor to prove, right? While it certainly may be fairly simple for a New York City (or any jurisdiction for that matter) Assistant District Attorney to establish in a complaint or prove beyond a reasonable doubt at trial, not everything is as easy as it seems.
Since the New York State legislature created new violations of the Penal Law and criminal code involving Strangulation and Related Crimes, prosecutors throughout New York City and the suburbs have been bringing these cases at very serious clips. It seems that any time there is allegation of one party grabbing, pushing or even touching the neck area of another person, prosecutors charge either the misdemeanor crime of Criminal Obstruction of Breathing or Blood Circulation (New York Penal Law 121.11) or felony Second Degree Strangulation (New York Penal Law 121.12). While Strangulation is a more serious offense than Obstruction of Breathing or Blood Circulation, both crimes (even mere allegations) can destroy the life and career of any professional. Further, because of the nature of the crimes, orders of protections (restraining orders) are routinely granted by criminal court judges that keep families a part. Make no mistake. While these crimes are very real offenses and ones that prosecutors, the NYPD and all branches of law enforcement should take seriously, an accusation or allegation by law enforcement does not mean you actually committed or are guilty of these or any offense.
While this blog entry will generally address the crimes of Obstruction and Strangulation, the entry will briefly analyze a legal decision out of the Appellate Division Fourth Department that addressed a critical distinction between NY PL 121.11 and NY PL 121.12. The reduction of a felony Strangulation in the Second Degree to a misdemeanor Obstruction of Breathing or Blood Circulation can mean the difference between your family visiting you in some upstate correctional facility and you remaining free of any incarceration.