No Direct Proof I Caused Him Any Pain or Physical Injury: Circumstantial Third Degree Assault Arrests in New York

New York Penal Law 120.00 is New York’s misdemeanor Assault crime. As a result, any time a complainant or alleged victim makes an claim that another person struck, hit, punched, etc., him or her, prosecutors will routinely add Third Degree Assault to the list of crimes on a criminal court complaint. Similarly, Second Degree Harassment, New York Penal Law 240.26, is a violation that is not a legal “lesser offense,” but an offense nonetheless that Assistant District Attorneys will throw at the accused. Because PL 120.00, a misdemeanor carrying a sentence of up to one year in jail, is a gravely concerning charge whether by Desk Appearance Ticket or full on arrest and processing, it is imperative to do your best to challenge your arrest at every stage of the criminal process well before you on trial. One of the means to do so at the earliest stage is for your criminal defense attorney to file a motion arguing that the complaint against you is legally of facially insufficient to support the elements and crime of Assault in the Third Degree. On avenue your criminal lawyer may pursue is arguing that on the face of the complaint the prosecution failed to establish that as a result of your alleged actions, even if true, you caused the “victim” to suffer a physical injury and substantial pain.

In order for a judge or jury to convict you for Third Degree Assault, the District Attorney must prove beyond a reasonable doubt that you intentional caused a physical injury to another person. Physical injury is generally described or defined as substantial pain. Before a trial starts, however, your attorney can also challenge the legality of the complaint as addressed above. In People v. Frankiling, 2015 NY Slip Op 51107(U) (Bronx County Crim. Ct. 2015), it was alleged through the criminal court complaint that the defendant violated PL 120.00 because he bit the complainant on the finger, the complainant stated as such, the complainant further asserted the defendant hit her in the face and the police officer saw a laceration on the defendant’s cheek with some bleeding as well as her swollen and bruised face and finger. The defendant did not make any admissions and the police officer did not observe the alleged fight.

Although the Court ultimately dismissed Frankiling due to the fact that the complaint did not reflect that the defendant was the individual who caused the physical injury, the information charging the defendant as to the elements of the Third Degree Assault were legally sufficient. The New York Penal Law defines “physical injury” as the “impairment of physical condition or substantial pain.” In response to the defendant’s contention that the complaint failed to establish physical injury the Court stated as follows:

“‘While the most direct and strongest allegation about any physical injury suffered by a victim would typically come from the victim herself, there is an objective line above which one can reasonably infer the requisite level of physical injury based upon the specific allegations regarding the nature of the assault itself’ (People v Calixto, 29 Misc 3d 798, 802 [Crim Ct, New York County 2010]). It is alleged that the complainant was struck in the head and bitten on the finger. She was attacked with such severity that deponent observed a bleeding laceration, bruising and swelling to the face and finger. The accusatory instrument alleges acts of violence ‘sufficiently extreme to permit a reasonable inference that the act was an experience that would normally be expected to bring with it more than a little pain’ (People v Morris, 44 Misc 3d 810, 819 [Crim Ct, New York County 2014] [internal citations omitted]). From the nature of the complainant’s assault and the severity of her injuries, it is a reasonable inference that she experienced substantial pain.”

At bottom, the Court was clearly correct in both its conclusion and how it arrived there. A victim setting forth the degree of his or her physical injury and substantial pain is always best, but the circumstances surrounding an injury and the evidence surrounding it can also provide the degree of corroboration needed to support this charge.

To better understand the nuances and degrees of Assault, physical injury, serious physical injury and other elements of any New York Assault crime, follow the highlighted links. Additional information on Third Degree Assault, NY Domestic Violence Crimes, NYC Desk Appearance Tickets and other relevant information is available through other links and on the websites and blogs below.


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