New York Third Degree Assault: Legal Sufficiency and Prosecutions of NY PL 120.00 with an Uncooperative Victim

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.

In People v. Heatley, 2014, NY Slip Op 51221 (NY City Court, Criminal Court 2014), a criminal court information charged the defendant with two counts of  Third Degree Assault (New York Penal Law 120.00(1) – Intentional Assault and New York Penal Law 120.00(2) – Reckless Assault), Attempted Third Degree Assault (New York Penal Law 110/120.00) and Second Degree Harassment (New York Penal Law 240.26). The information contained the following statement of fact from the arresting officer:

” …I could hear a man and a woman shouting at each other. I could hear a woman screaming and items breaking inside the apartment. Despite my repeated knocks on the door, no one answered. I opened the front door, which was unlocked, and observed the defendant standing in the hallway without any visible injuries. I then observed [the complainant]… sitting in the living room with blood on her chest and a cut on her finger about two inches long. I observed that the laceration on her finger was fresh in that I observed it was red and bleeding. I also observed that [the complainant] was visibly upset, in that she was crying hysterically, her hair was disheveled, she was shaking, and had bloodshot eyes. I also observed blood on the kitchen wall, more blood smeared on the living room floor, and dents in the living room wall. The defendant stated in substance and in part, ‘We had a disagreement.'”

In moving to dismiss the information for legal insufficiency (you will note that the complainant is not the person who is the deponent or individual swearing out the allegations, but the arresting officer), the defendant asserted that without the alleged victim, the elements of the crimes of Assault in the Third Degree, Attempted Assault in the Third Degree and Harassment in the Second Degree could not be substantiated because the office did not see the incident that allegedly transpired. Disagreeing with the defendant, the court found that:

“[F]or the Information to be facially sufficient it must allege some fact that renders an inference of guilt more likely, even if only slightly, than the other inferences. The Court concludes that such additional facts are present and the Information is facially sufficient. First, the facts pled reasonably eliminate the possibility that an unseen third party caused the complainant’s injury. The officer arrived three minutes after receiving the radio run, and could hear that the dispute that in all likelihood caused the complainant’s fresh injury was still going on. The dispute involved only the complainant and the defendant, and there was no one else in the apartment when the officer entered.

There are also sufficient facts to establish reasonable cause to believe both that the defendant caused the complainant’s injury and that he did not do so accidentally. The officer heard the defendant and the complainant shouting, heard items breaking and, when he entered the apartment saw indentations in the wall that could reasonably be attributed to the items the officer heard being broken. In addition, the complainant was in the same room where the officer saw the indentations, and there was blood on the floor of that room. Only the complainant was injured, the officer had heard her screaming before he entered, and she was in an extremely agitated emotional state. These facts together reasonably overcome the possibility that the complainant injured herself. Finally, the defendant admitted that he and the complainant had had a ‘disagreement.’ This, when added to the other available facts, reasonably overcomes the possibility that the defendant injured the complainant accidentally. To be sure, these facts do not entirely eliminate the possibilities that the defendant accidentally injured the complainant, that a third party caused her injuries or that she injured herself, but that is not the test. These facts make the defendant’s criminal culpability more likely than these other theories, even if only to the very small but sufficient degree necessary to establish reasonable cause.”

The Heatley case teaches us two important lessons. That is, whether or not a complainant wants to cooperate with prosecutors or proceed with a criminal case, the District Attorney’s Office may be able to do so even without their assistance. Second, the case also sheds light on them minimal requirements for legal sufficiency in an Assault (or any) case where circumstantial evidence is often enough.
Every case of New York Third Degree Assault is serious. Your criminal attorney knows that and you should as well. Educate yourself on the Penal Law and criminal process to mount the strongest defense.
Crotty Saland PC is a criminal defense firm established by New York criminal lawyers and former Manhattan prosecutors. For further information on the crimes addressed above, follow the links or review the websites and blogs below.
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