Assault in the Third Degree (New York PL 120.00) and Assault in the Second Degree (New York PL 120.05): Differences in the Crimes and Your Criminal Defense

The best criminal defense of an Assaultcase depends on many factors. Regardless of where you are in New York, your criminal defense attorney should always pursue numerous legal angles. Is the Assaultcomplaint/information against you legally sufficient? Has the complaint/information established a physical injury or substantial pain? Are there any witnesses or are there pictures or video of the incident? How has the evidence been preserved? Not an exhaustive list, the above questions are tremendously important ones that your criminal defense attorney needs to know when defending your Assault case.

It is also very important to understand as the accused the nuances between certain types or levels of Assault. For example, if you are charged with intentional Assault in the Third Degree pursuant to P.L. 120.00(1), but you were acting recklessly, then your actions may or may not satisfy the intentional element of the offense. Instead, a charge of P.L. 120.00(2) would be appropriate. In the latter form of Assault, the intentional requirement is replaced with a reckless element. Although the levels of the crime are the same, they are both misdemeanors, if your mental state was reckless as opposed to intentional, then P.L. 120.00(1) would not be the appropriate charge.

Another issue that I have witnessed both as a prosecutor and criminal defense attorney is where a person is charged with Assault in the Second Degree, a felony punishable by up to seven years in state prison, but a critical element is not made out. Pursuant to P.L 120.05(1), an individual is guilty of this charge when with the intent to cause serious physical injury to another person, he causes such injury to such person or to a third person. Here, your criminal defense attorney needs to challenge the validity of the “serious physical injury.” Unlike mere “physical injury” such as a black eye or bloody cut lip, “serious physical injury” requires the creation of substantial risk of death or causes, among other things, protracted disfigurement or impairment of health. So, in the event that it was your intent to cause “serious physical injury,” but the injury suffered did not rise to this level, then you are not guilty of Assault in the Second Degree. Moreover, if you were reckless in your actions and caused “serious physical injury,” then you must have used a weapon or dangerous instrument to cause this injury. The recklessness by itself will not be sufficient to satisfy the elements of Assault in the Second Degree.

The nuances of each and every Assault charge in the New York Penal Law are extensive. It would take hours of discussion to go through each. That being said, it is imperative that the time is spent analyzing the specific charges levied against you or a loved one to make sure that the elements of each crime charged are satisfied. The skilled criminal defense attorneys and former Manhattan prosecutors at Saland Law PC will take the time to conduct this thorough examination and take you through the process in order to present the strongest defense and set forth the most compelling arguments to preserve your rights, liberty and integrity. We know that each case requires this attention and our results speak for themselves.

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