Oscar Fuller, the One Punch Bandit, and Second Degree Assault: A New York Criminal Lawyer’s Analysis of a Potential Overcharge

Oscar Fuller, the man accused by prosecutors of obliterating the petite Lana Rosa with one punch, was arraigned on an indictment charging Assault in the Second Degree in Manhattan Supreme Court earlier this April. According to District Attorney Cyrus Vance, Jr., what began as a dispute over a “trivial matter – a parking spot – turned into a vicious and senseless act of violence with dire consequences.”

While I do not believe anyone can credibly argue that Ms. Rosa, who recently awoke from a coma after fracturing her skull, was not hurt catastrophically, legal minds can certainly debate whether or not DA Vance made the wrong (or right) charging decision in this case. Make no mistake, DA Vance had “no choice” but to present this matter to a Grand Jury. If he did not present the case to the Grand Jury, the jury of public opinion would not embrace the top prosecutor well. If the case was presented to the Grand Jury and they did not indict, then DA Vance could always explain that he must respect the process whether he agreed or not with the outcome. Regardless, the Manahttan District Attorney’s Office is now saddled with proving a one punch felony that may not merit such a prosecution based on the actions of the accused as opposed to the end result.

For the sake of argument, let’s assume that Fuller did in fact punch Rosa in the face. Moreover, let’s assume that the young lady fell to the ground and struck her head causing her to lose consciousness. Let’s further assume that Fuller had the intent to cause physical injury. After all, if true, there are few, if any, reasons why one person would punch another person in the face. The next, and critical, issue, however, is the hurdle that the prosecution must jump. When Fuller punched Rosa did he do so with the intent not to merely cause “physical injury,” but “serious physical injury.”

“Physical injury” means impairment of physical condition or substantial pain. “Serious physical injury,” however, means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ. As you can see, there is a vast difference between the two. Again, the end result is not the issue, but whether or not Fuller struck Rosa with the intent to cause “physical injury” or “serious physical injury.”

As I understand the evidence, Fuller struck Rosa once. Furthermore, Fuller’s attorney claims that video supports that Rosa approached his client first. After the one punch, Ms. Rosa, who is not even five feet tall, was knocked back and her head struck the sidewalk causing the catastrophic injuries. Objectively (beyond a reasonable doubt), was it Fuller’s intent to fracture her skull or cause potential brain damage when he struck her and she struck the sidewalk? If that were the case and the prosecution believes Fuller intended to use the sidewalk as the weapon to perpetrate the crime, then prosecutors would have charged a different subsection of the felony Assault (the weapon and dangerous instrument “bump up”). Instead, they chose the theory and subsection as described above.

Assuming the evidence is close to what is described, did Fuller want to hurt Rosa and cause her pain? The objective answer, self defense argument aside, is probably “yes.” Maybe he wanted to even teach Rosa a “lesson” and give her a fat lip, black eye or swollen nose. But, when he struck her, was it his intent to cause her such an injury that there was a substantial risk of death or protracted impairment of her health or functioning of a bodily organ? Is the evidence going to establish beyond a reasonable doubt that with one punch it was his intent to hurt Rosa this horrifically? Despite prosecutors’ apparent claims, the fact that Rosa is a small woman does not equate to a different intent in the mind of Fuller. Is their argument that if Rosa weighed more or was a bigger man, who absorbed the punch better, then Fuller’s intent would have been different? The smaller woman may have made his actions more reckless, but, without more – threats, multiple swings, hovering over her, etc. – the one punch doesn’t add up to an intent to cause “serious physical injury.”

What all of us tend to do is confuse or combine our emotions with the law. While the two are no mutually exclusive, the issue is not whether you like Fuller or if you grieve for Rosa and her family. One would be terribly insensitive not to feel for the pain Rosa and her family has and will continue to go through. No man or woman should strike another over such an insignificant argument. Having said that, emotions aside, the law is still the law. While there may be civil remedies and a misdemeanor crime, the facts as I know them do not warrant an indictment – or conviction – for Assault in the Second Degree. Fortunately, I am neither judge nor jury. Come later this month when Mr. Fuller is next in court, we will certainly begin to see whether or not my assessment has any merit.

For in depth information as to the general crimes of Assault in New York as well as the difference between Assault in the Second and Third Degrees, please review the Assault section of the Saland Law PC website listed under Violent Crimes. Beyond the Saland Law PC website, additional information on these and other crimes, including criminal statutes, legal decisions and analysis of press related cases, can be found on the New York Criminal Lawyer Blog.

Saland Law PC is a criminal based New York City criminal defense law firm. The two founding partners both served in the Manhattan District Attorney’s Office before starting the law practice.

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