Assault

December 19, 2010

Making a Misdemeanor Assault in the Third Degree a Second Degree Felony in New York: When an Object Becomes a “Dangerous Instrument” & a Weapon

As I have noted in earlier entries, a misdemeanor Assault in the Third Degree (New York Penal Law 120.00) can be “bumped up” to a felony Assault in the Second Degree (New York Penal Law 120.05(2)) if the alleged perpetrator uses a “dangerous instrument.” As a New York criminal defense attorney and former Manhattan prosecutor, I have seen various non-threatening items qualify as “dangerous instruments” where there is really nothing dangerous about them. Unfortunately, even these items, if used in the violent context, can mean the difference between facing up to one year in jail or seven years in state prison.

Briefly, pursuant to New York Penal Law 120.00(1), if a person intentionally causes physical injury to another (substantial pain or physical impairment), then that person is likely guilty of this misdemeanor. However, if a person uses a “deadly weapon” or a “dangerous instrument,” then the crime becomes more serious even if the injury is the exact same. Pursuant to Assault in the Second Degree, New York Penal Law 120.05(2), a person is guilty of this crime when he or she intends to cause physical injury to another person by using a “deadly weapon” or “dangerous instrument.”

December 14, 2010

New York Criminal Defense Lawyers Get Another Top Result: Assault in the Third Degree (New York Penal Law 120.00) Dismissed

by Jeremy Saland

It is unquestionably the best outcome or as close as one can get. Saland Law PC, a Manhattan based criminal defense firm founded by two New York criminal defense attorneys and former Manhattan prosecutors, obtained a dismissal of all charges against a client accused of Assault in the Third Degree (New York Penal Law 120.00). Our client, a doctor, was alleged to have “pummeled” another man in a dog run after a dispute involving their dogs. The complainant had two alleged “witnesses,” actually friends, who claimed they saw the entire incident. Although the complainant had no visible injuries (we requested picture numerous times to no avail) and was seen in fine health the following day by witnesses not tied to either party, the prosecution was bent on going forward. Compounding matters, the complainant’s personal injury attorney called our client within days to see if our client wanted to settle to avoid a lawsuit (he received a resounding “no”).

Fortunately, at least three or four independent witnesses (not friends with either party) saw the incident and asserted that our client never struck anyone. Despite providing these witnesses to the prosecution, the District Attorney’s Office only offered a Harassment violation. Because our client did no wrong and the complainant saw him as a deep pocket for his lawsuit (not only did the “victim” fail to tell the prosecution he was suing, our investigation revealed this was not the first time he sued someone else or was involved in litigation), our client refused this offer.

June 11, 2010

New York Penal Law 120.00 (Assault in the Third Degree) & Your Criminal Defense: Is A Complaint Sufficient if it Merely Alleges “Substantial Pain?”

by Jeremy Saland

One of the most common crimes prosecuted by Assistant District Attorneys in New York (Manhattan, Brooklyn, Queens, Bronx and beyond) is the offense of Assault in the Third Degree pursuant to New York Penal Law 120.00. When one is accused of Assault in the Third Degree, the prosecution must set forth certain elements. One critical element is that the complainant or victim must have suffered physical injury. Generally, “physical injury,” as defined under section 10.00(9) of the New York Penal Law, is an “impairment of physical condition or substantial pain.” Having presented this definition, is a complaint sufficient accusing you of Assault in the Third Degree if it merely states that the complainant suffered “substantial pain” as a result of your actions, but without “fleshing out” the “substantial pain?” Is more needed for the prosecution’s case to survive a motion to dismiss from your New York criminal defense attorney?

According to a Manhattan Criminal Court Judge, merely asserting that a complainant suffered “substantial pain” without more is not sufficient. In People v. A. S., decided May 11, 2010, the complaint against the accused alleged as follows:

February 12, 2010

New York’s Assault in the Second Degree & Your Criminal Defense: How Prosecutors Can “Bump Up” Assault in the Third Degree (NY PL120.00) to a Felony of Assault in the Second Degree (NY PL120.05(2))

by Jeremy Saland

Criminal defense attorneys and lawyers throughout New York City regularly deal with the various crimes relating to and degrees of Assault found in Article 120 of the Penal Law. The most common, Assault in the Third Degree ( New York Penal Law 120.00), is a misdemeanor offense punishable by up to one year in jail. A more serious crime, Assault in the Second Degree (New York Penal Law 120.05), is a felony offense punishable by up to seven years in state prison. Although it will be discussed further below, one of the more common reasons why an intentional misdemeanor Assault in the Third Degree is “elevated” to a felony Assault in the Second Degree is because a “dangerous instrument” is used during the commission of the lesser crime. While there are various legal reasons to raise the level of the crime, where that basis is the use of a “dangerous instrument,” the actual injury inflicted for the misdemeanor and felony level crime is no different. As will be explained below, if you punch someone in the eye and give him a black eye that swells shut you may face the misdemeanor crime. If you do the same thing, but use the heel of your shoe, a baseball bat or even the door of your car, your crime may be elevated to a felony because your use of a “dangerous instrument.” With this in mind, I will first deal with the applicable definitions of the crimes of Assault in the Third and Second Degrees as well as what constitutes a “dangerous instrument.” Once that is done, I will address a few court decisions that have addressed when an instrument is considered “dangerous” under the law and, as a result, and individual had his or her misdemeanor Assault charge raised to a felony offense.

NY PL 120.00(1) – Assault in the Third Degree

October 15, 2009

Breaking Down State Senator Hiram Monserrate’s Conviction of Reckless Misdemeanor Assault

by Jeremy Saland

A Queens County Supreme Court Judge acquitted Hiram Monserrate of felony Assault and convicted the embattled state senator of Assault in the Third Degree, a misdemeanor. More specifically, the judge found him guilty of New York Penal Law 120.00(2). According to the New York Penal Law, an individual is guilty of 120.00(2) when he or she recklessly causes physical injury to another person. This offense differs greatly from 120.00(1) which requires that a person intentionally causes physical injury to another person. Regardless of the theory of the case, anyone convicted of a misdemeanor Assault faces up to one year in jail. However, a judge has the discretion to sentence that person to no jail at all. While the court has not sentenced Senator Monserrate, a full order or protection was issued thereby preventing him to have any contact with the victim of his crime.

While I did not sit in the courtroom listening to the testimony, the decision rendered by the court does not surprise me. If Senator Monserrate had been convicted of the felony, the state would have been thrust into terrible turmoil and a horrendous stalemate. Removing Senator Monseratte from his seat would have resulted in 31-30 standoff in the state senate. Did this fact impact the court’s decision? Did the judge “split the baby” by finding Mr. Monserrate guilty of a crime, but a significantly lesser offense? Are we over analyzing his decision and, at bottom, the facts just did not support the People’s case?

August 26, 2009

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

by Jeremy Saland

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.

August 13, 2009

Accomplice Liability (New York Penal Law 20.00) in Conjunction with Assault in the Third Degree (New York Penal Law 120.00)

by Jeremy Saland

Your buddy is waiting to be arraigned at 100 Centre Street in Manhattan for Assault in the Third Degree pursuant to New York Penal Law 120.00(1) for splitting someone’s lip with his fists. The worst part is you need an experienced criminal defense attorney as well. Why? Well, you are sitting right next to him. So, here is the question. How is it that he is the guy who threw the punches, but you were arrested as well? The answer is found in New York Penal Law section 20.00. As we like to call it…accomplice liability.

Under New York law, one is liable for the acts of another when:

July 16, 2009

Best Possible Outcome: NY Criminal Defense Lawyers at Saland Law Obtain Dismissal of Assault in the Third Degree (PL 120.00)

by Jeremy Saland

Saland Law PC, one of the top New York City and Manhattan based criminal defense firms, is pleased to announce the dismissal of the criminal charge of Assault in the Third Degree, pursuant to NY Penal Law 120.00(1), against our client. The case, a difficult one to defeat, involved an alleged altercation between our client during a “road rage” type incident.

After our client’s car was struck by the complainant’s vehicle, our client, driving a mini-cooper, confronted the complainant over the incident. Our client exited the mini-cooper and approached the other vehicle. To the “big” surprise of the complainant, the man who stepped out of the mini-cooper was 6’10 and 320 pounds (I can’t speculate how he got into that mini-cooper). As the incident unfolded, the police claimed they observed our client strike the complainant through the window of the car. Ultimately, our client was arrested.

June 19, 2009

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

by Jeremy Saland

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.

May 8, 2009

One of the Best Ways to Beat Your Assault and Reckless Driving Case in NY – Challenge Facial Sufficiency

by Jeremy Saland

The top criminal defense attorneys in New York and New York City know there are many ways to “skin a cat” in order to achieve the best results for their clients in a criminal case. Sometimes we use “honey” and “sometimes” it is vinegar. A recent decision in Manhattan Criminal Court involving the charges of Assault in the Third Degree (Penal Law 120.00(1)) and Reckless Driving (Vehicle and Traffic Law 1212) strengthen the “vinegar” approach by adding another judicial decision to our criminal defense arsenal of cases to utilize in a client’s criminal defense.

In People v. Warmann DiPoumbi, 2008NY068631, decided April 28, 2009 and published in the New York Law Journal on May 7, 2009, a Manhattan Criminal Court Judge dismissed the charges of Assault and Reckless Driving based, in part, for facial insufficiency. The complaint alleged that the defendant drove through a stop sign without stopping. After the police stopped the defendant, the defendant opened the car door and the door struck the police officer causing “swelling and substantial pain.”