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))

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

“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.”

NY PL 120.00(2) – Assault in the Second Degree

“A person is guilty of Assault in the Second Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”

NY PL 10.00(13) – Definition of Dangerous Instrument

“‘Dangerous instrument'” means any instrument, article or substance, including a “‘vehicle'” as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.”

Now that you have the definitions, continue reading for the analysis…
“Dangerous Instrument” Does Not Have to be a Switchblade, Firearm, Shotgun, Razor, or Other “Obvious” Weapon

People v. Carter, 53 N.Y.2d 113 (1981): “Here, there is evidence that the defendant used the rubber boots to stomp upon the head and face of his victim, causing her head to contact the pavement below with tremendous force. The jury apparently concluded that the pair of boots, when used in this fashion, was readily capable of causing serious physical injury and, thus, was a ‘dangerous instrument’ within the meaning of subdivision 13 of section 10 of the Penal Law.”

People v. Galvin, 65 N.Y.2d 761 (1985): Sidewalk a “dangerous instrument” when defendant repeatedly bashed complainant’s head into the ground.

People v. Medor, 39 A.D.3d 362 (1st Dept. 2007): Heavy and weighed down backpack containing a hammer, screw drivers and wine used to hit another on the head constituted a “dangerous instrument” sufficient to establish felony Assault.

People v. Landy, 68 A.D.3d 520 (1st Dept. 2009): Although dealing with Burglary statute, conviction upheld and “dangerous instrument” established where the defendant had a sharp piece of metal that he threatened to stab the complainant with.

People v. Lev, 33 A.D.3d 362 (1st Dept. 2006): Evidence sufficient to establish the crime of Attempted Assault in the Second Degree where the defendant repeatedly kicked the complainant in the midsection while wearing thick soled sneakers.

People v. Edwards, 16 A.D.3d 226 (1st Dept. 2005): Shoe was a “dangerous instrument” when defendant kicked complainant dislocating his elbow. Defendant convicted of Assault in the Second Degree.

Body Parts as Dangerous Instruments

People v. Owusu, 93 N.Y.2d 398 (1999): Defendant’s conviction overturned after he was found guilty of Assault in the Second Degree for using his teeth to bite the complainant’s finger and severing the nerves. Court of Appeals stated that “instrument is not one’s arm, hand, teeth, elbow or any other body part.”

The above cases give a general idea as to the position of the courts. As noted in the statute and case law, more important than being a weapon in the traditional sense, the manner in which that item, object or “instrument” is used is paramount. For further analysis on this issue and to ascertain and implement the best defense to these charges, consult with an experienced criminal defense attorney and review the applicable statutes.

Saland Law PC is a criminal defense firm founded by two former Manhattan prosecutors. Located in New York City, Saland Law PC represents clients throughout the metropolitan region.

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