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

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:

“Deponent [a police officer] is informed by a person known to the District Attorney’s Office [the complainant] that said defendant approached said informant and shoved and hit said informant about the body with his fist, causing substantial pain.”

In analyzing whether or not to dismiss the complaint, the Court noted that “‘petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives’ are not acts that constitute assault. (See Philip A., 49 N.Y.2d at 200 (quoting Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p. 330); People v. Chiddick, 8 N.Y.3d 445, 448 [2007].)”

Upon reviewing the complaint and applicable case law, the Court stated:

“In the instant matter, the court must consider whether the allegations and all reasonable inferences therefrom are sufficient to establish that the complaining witness experienced substantial pain and therefore suffered physical injury. ‘Substantial pain’ is ‘more than slight or trivial pain’ but ‘need not…be severe or intense.’ (Chiddick, 8 N.Y.3d at 447.) The Court in Chiddick identified ‘several factual aspects…that can be examined to decide whether enough pain was shown to support a finding of substantiality[,]’ including: (1) the injury that the defendant inflicted, viewed objectively, (2) the complaining witness’s subjective description of what he or she felt, (3) whether the complaining witness sought medical attention, and (4) the motive of the offender. (Id. at 447-48.)

Here, the only allegation as to the alleged assault is that the defendant shoved and hit the complainant about the body with his fist. The accusatory instrument alleges that this caused the complaining witness substantial pain. The court concludes that the utter absence of any description of the injuries allegedly experienced by the informant/complainant renders this accusatory instrument defective, the element of physical injury not being sufficiently alleged.”

The above decision by the court to dismiss the complaint against the defendant in this matter was based in both law and facts as set forth in that particular complaint. Whether this decision as well as the Chiddick case are applicable in your criminal matter is something that cannot be addressed through a blog entry, but an issue that you should consider discussing with your own legal counsel.

For more information on the crime of Assault in New York, please follow the highlighted link. Additional information can be found at the New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Saland Law PC is a New York criminal defense firm. Founded by former Manhattan prosecutors, the New York criminal defense lawyers at Saland Law PC represent the accused throughout the New York Cit region.

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