Assault in the Third Degree: Manhattant Judge Finds Momentary Loss of Breath Sufficient to Establish PL 120.00(1)

NY criminal defense lawyers and attorneys who handle Assault cases in New York City should take notice. In People v. Sergio Garcia, 2009NY017018, a Manhattan Criminal Court Judge recently upheld the facial sufficiency of a complaint alleging Assault in the Third Degree, pursuant to Penal Law 120.00(1), where the defendant “punched [an officer] in the chest, thereby causing [that officer] to appear to lose his breath momentarily.”

According to Penal Law 120.00(1), a person is guilty of Assault in the Third Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person. Additionally, physical injury requires impairment of physical condition or substantial pain.

In finding the complaint against the defendant sufficient, the court stated that:

“Causing someone to be unable to breath, albeit momentarily, clearly supports an impairment of a person’s physical condition, i.e. – breathing, which in the case at bar is directly attributable to the defendant’s alleged actions. In the medical field (and as every First Class Boy Scout is trained) it is well settled that among the three most exigent medical “hurry cases” for first aid purposes are 1) heart attack, 2) severe bleeding and 3) impairment of breathing. Such conditions are considered to be potentially life threatening as they relate to fundamental systems necessary to the continuation of bodily function. The even momentary compromise of any such function, is of great concern to the overall integrity of the human body. Such compromise therefore clearly fits within the meaning of the statue.”

It is important to note that although this case extends the definition of “impairment of physical condition,” it is not a case that is controlling on other courts in Manhattan or other jurisdictions such as Brooklyn or the Bronx. In other words, this decision is not an appellate decision that binds lower courts in any New York City court. Nonetheless, it is an important decision that at a minimum sets forth the idea that one must not suffer a broken nose, bloody lip or black eye to be the victim of Assault in the Third Degree under the law in New York. Clearly, the bar dictating injury may be much lower.

Because courts can view facts and the law differently even within the same building, it is imperative to be represented by experienced criminal defense attorneys who, like the former prosecutors at Saland Law PC, are able to assess the facts before them, develop a plan of attack and implement a strong and viable criminal defense.

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