New York Penal Law 120.05(6) – Assault in the Second Degree: Raising a Misdemeanor to a Felony

The New York Penal Law provides for in excess of ten different subsections of felony Assault in the Second Degree pursuant to section 120.05. While the most common felony Assault crimes handled by New York criminal lawyers are those involving the intent and actual causing of serous physical injury or the use of a dangerous instrument to cause a physical injury (NY PL 120.05(1) and NY PL 120.05(2) respectively), there are many more equally serious crimes set forth in this section. Unfortunately for those attorneys who are not regular practitioners of criminal law or focused in the criminal courts of New York, these offenses may “unexpectedly” pop up in a case before he or she is prepared to represent the client in an Assault arrest or indictment.

New York Penal Law 120.05(6) is one of these less common, but equally serious, subsections of Assault in the Second Degree. According to NY PL 120.05(6), you are guilty of Assault in the Second Degree if either during the course of committing, furtherance of or immediate flight from a felony, you cause physical injury to another person. Additionally, if another participant in the felony causes physical injury to another person, then you are also guilty of Assault in the Second Degree.

There are a few relevant and important factors that an untrained legal eye might miss. First, the statute does not indicate if you cause physical injury to another person your actions need to be knowing, intentional or even reckless. Second, although serious physical injury is generally the standard that is used to differentiate felony Assault from misdemeanor Assault in the Third Degree, because this subsection applies to incidents that occur during the commission of a felony, the injury standard is no different than that of a misdemeanor. Generally, misdemeanor Assault only requires substantial pain and nothing too significant that would be life altering. For example, a deep, yet superficial, laceration or a “shiner” to your eye would qualify as physical injury. Serious physical injury, on the other hand, ratchets the degree of pain and suffering up a few notches to injuries that may result in disfigurement, impairment of a bodily function or even death. this could be something as serious as loss of eyesight or a laceration that leaves a large scar on your face. Third, your liability for this subsection of Assault in the Second Degree extends to fellow participants in the crime. In other words, if your “partner in crime” flees a felony Forgery crime at Manhattan Duane Reade or a Burglary from a home in White Plains and while in the process of that flight he knocks a pedestrian down and fractures that man’s ribs, then you would also be guilty of this crime. An easy way to look at this dynamic is that it is a lesser legal standard than accomplice liability. Having said that, prosecutors would still have to establish you and the other accused were acting in concert for the underlying felony. Lastly, the types of felonies that you must be fleeing from or involved in are all of the felonies listed in the New York Penal Law except any felony crime listed under Article 130. Article 130 constitutes the sex crime offenses such as Rape.

Obviously, the above synopsis is vague and generalized. In fact, there are many cases that have been heard by courts over the years that further establish and define NY PL 120.05(6). However, the picture should be relatively clear. If your conduct is similar to that described above, then you would face a “D” felony punishable by up to seven years in state prison. unfortunately for those accused of this crime, even if the “real” underlying felony you were involved in or your partner was fleeing from was a lesser “E” felony offense.

For legal analysis and information on New York Assault crimes, follow the highlighted link. There you will also find links to the Assault section of the NewYorkCriminalLawyerBlog.Com that contains significant material ranging from reviews of legal decisions, cases in the news and criminal statutes.

Established by two New York criminal lawyers who each served in the Manhattan District Attorney’s Office, Saland Law PC represents those accused of Assault and other violent crimes in the New York City area.

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