There are countless arrests for Assault in the Third Degree, New York Penal Law 120.00, Assault in the Second Degree, New York Penal Law 120.05, and Assault in the First Degree, New York Penal Law 120.10, charges every year in New York City. An issue that arises incredibly frequently, and one that many criminal lawyers must contend, involves the misdemeanor crime of Assault in the Third Degree prosecutions. That question, a genuine legal one, is what amounts to “substantial pain” in the eyes of the New York criminal code? The reason that this is such a common issue is that one requirement for Assault in the Third Degree under the New York State Penal Law is that the victim suffered a “physical injury.” The law in New York is that, in addition to more obvious injuries like broken bones, only requires that an alleged victim suffer “substantial pain” as one kind of “physical injury.” Interesting for many reasons, not least of which is that pain is such a subjective thing, there is a legal threshold that the prosecution must meet. If your bone is broken, it’s either broken or it isn’t – it’s an objective standard. Pain is far more nebulous, and leaves a lot of room for interpretation both in terms of the person allegedly suffering as well as a judge who will review a criminal complaint for legal sufficiency.
In the recent case of People v. Mohamed in Manhattan Criminal Court, the defendant was charged with Assault in the Third Degree, and sought to have the case dismissed based on the argument that the allegations of placing his hands on the victim’s shoulder and chest, pushing her backwards, and causing redness and pain to the areas did not amount to an allegation of “substantial pain,” and therefore did not amount to an allegation of “physical injury.” Without the element of “physical injury,” the defense attorney argued that the legal document accusing Mr. Mohamed was not sufficient. The Court in Mohamed concluded that these allegations were not enough, and dismissed the charge. The only allegations relating to any kind of injury were “redness and pain” to victim’s shoulder and chest. Essentially, the degree of pain was not specified – whether it was “substantial” or simply a mild pain. In addition, it’s safe to assume that there is nothing about these allegations that could circumstantially suggest or establish a physical injury. Redness could be one sign, or could accompany, a serious cut or laceration, but to assume that here would be too great a leap. Simply, without more evidence of how the injury occurred, the nature of the injury, how it may have been treated, and the physical manifestations of the injury, to name a few, the accusatory instrument was insufficient.
While courts are generally very lenient, and give a great deal of deference in viewing criminal allegations in a light most favorable to the prosecutor or District Attorney’s Office, a line must be drawn somewhere and a plain allegation of “pain” and “redness” is generally not enough to rise to the level of a “physical injury” as required by NY PL 120.00.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal lawyers at Crotty Saland PC represent clients in Assault cases throughout the New York City and Hudson Valley region. To learn more about any degree of Assault in New York – both felony and misdemeanor – review Crotty Saland PC’s New York Assault Crime Information Page.