Defending a New York Felony Assault Arrest: Small Scars, Lacerations & Second Degree Assault (NY PL 120.05)

New York Assault lawyers and criminal defense attorney who routinely practice in New York’s criminal courts see Assault prosecutions involving the entire spectrum of injuries. For example, common Third Degree Assault (New York Penal Law 120.00) allegations occur after two people get into a fist fight. Maybe one person took a worse lickin’ and received a punch to a jaw that left him soar and bruised. Alternatively, during another melee a spouse had scratches to his or her neck or arm with some redness. As long as prosecutors can establish intent to cause a physical injury and the actual suffering of a physical injury (generally described as substantial pain and illustrated throughout numerous blog entries in Saland Law PC’s NewYorkCriminalLawyerBlog.Com), NY PL 120.00 is proveable. What is more difficult, however, is establishing the level of injury required to achieve an arrest, indictment and conviction for Second Degree Assault according to New York Penal Law 120.05. In this felony level Assault, the degree of injury is defined as serious physical injury.

Whether one deems it fortunate or unfortunate, prosecutors often attempt to push the law in a manner favorable to their goals. Sometimes this comes in the form of “overcharging” a defendant for a crime to help achieve a plea. Regardless, if prosecutors cannot prove the level of injury required by statute, then the Assault charge should either be reduced or dismissed. In People v. Ricky Trombley, 104135, NYLJ 1202564193232, at *1 (App. Div., 3rd, Decided July 12, 2012), an Appellate Court did just that.

In Trombley, the defendant punched his victim with his fist. Striking the complainant in the face, the victim suffered two cuts or lacerations. One laceration was to the complaint’s chin area and the other below the lip. Indicted and ultimately convicted of Second Degree Assault (NY PL 120.05), the theory of the prosecution was that the serious physical injury – a physical injury (as described above) that causes, among other things, protracted disfigurement – manifested itself in two scars on the complainant’s face. One of the scars was roughly one inch long.

Upon reviewing the conviction, the Appellate Division overturned the verdict and found that the two small scars to the face did not establish the degree of injury required for a felony Assault consisting of serious physical injury. According to the Court of Appeals, New York’s highest court, “[a] person is ‘seriously’ disfigured when a reasonable observer would find [his or] her altered appearance distressing or objectionable. The standard is an objective one, but we do not imply that the only relevant factor is the nature of the injury; the injury must be viewed in context, considering its location on the body and any relevant aspects of the victim’s overall physical appearance” (People v. McKinnon, 15 NY3d 311, 315 [2010]).” While it is relevant the the scars were on the complainant’s face, the Appellate Division, citing People v. Stewart, 18 NY3d 831*832 (2011) correctly acknowledged that the injury was “objectively ‘distressing or objectionable.'”

Would the Court have determined the injury was a serious physical injury if there were three scars? What if the scars were not below the chin but across the forehead? Alternatively, would the Assault in the Second Degree be sustained if the scars were two inches instead of one? The bottom line is that each case must be analyzed not only in the context of prior legal decisions, but by its unique sets of facts and evidence. Failing to examine your particular case in this manner with your New York Assault lawyer may make the difference between a conviction, a reduction or even a dismissal.

To better understand New York Assault laws and crimes, follow any of the links throughout this blog entry. Saland Law PC’s Assault Defense section as well as the NewYorkCriminaLawyerBlog entries linked there, as well as below, are a tremendous resources for those accused of a New York Assault crime.

The New York Assault lawyers at Saland Law PC represent clients in all Assault arrests and trials throughout New York City and the surrounding region. Located in downtown Manhattan, Saland Law PC was founded by two former Manhattan Assistant District Attorneys.

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