Manhattan District Attorney Cyrus Vance, Jr. is in an unenviable predicament. One one hand he has Oscar Fuller, a man with a criminal record who is not a particularly sympathetic fellow, and in the other, Lana Rosas, a petite woman potentially on the edge of death or a vegetative life. Politically, “throwing the book” at Fuller is a no-brainer. Yet, is the charge of felony Assault in the Second Degree, New York Penal Law section 120.05(1), truly the right charge in this case or is it really just a reach? In DA Vance’s defense, because of the extent and nature of the injury to Ms. Rosas, he likely had no other choice but to present the matter to a Grand Jury to make the charging decision – and it did just that. The Grand Jury indicted the defendant on the charge of Assault in the Second Degree, a felony. The question that now has reared its head is whether the sadness and despair of this case played too great a role in the grand jury’s decision making process or did an objective view of the evidence dictate that Mr. Fuller’s actions were felonious?
Before proceeding any further, there are a few statements I must make. First and foremost, I do not think many people can grasp the pain that has fallen upon Ms. Rosas and her family. Regardless of the criminal charges, they have all suffered and we all hope that she can recover to live a normal life. Second, none of us, outside of those intimately involved in the case, know the evidence and facts beyond what we read or see in the local media. Because of this, in assessing this case, I will address the blog entry in a more vague approach while trying to tie it back to Mr. Fuller’s case. That is, if a person strikes another person once with his fist, and as a result, the victim suffers a horrific injury such as as swelling in the brain and a resulting coma, is the appropriate charge a felony or misdemeanor Assault?
In analyzing any Assault case, It is critically important to understand the intent element of the varying degrees of this offense even assuming the injury is extensive. Assault in the Third Degree, New York Penal Law 120.00(1), occurs when one has the intent to cause physical injury and actually causes physical injury to the person he strikes. Assault in the Second Degree, New York Penal Law 120.05(1), occurs when one has the intent to cause serious physical injury and actually causes serious physical injury to the person he strikes. The difference between the “A” misdemeanor crime punishable by up to a year in jail and the “D” felony offense punishable by up to seven years in state prison hinges on the word “serious.”
Generally, “physical injury” is often defined as substantial pain or an impairment of one’s physical condition. This type of injury can be as insignificant as a bloody fat lip that hurts pretty badly for a couple of days. “Serious physical injury” on the other hand is defined as a “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.” Obviously, these definitions are drastically different.
Keeping the above definitions in mind, if person one, in this case a man, punches a much smaller person two, in this case a woman, only once, what is the appropriate charge? Since more facts are needed, let’s say this one punch causes the women to fall to the ground, as in the Fuller case, and strike her head on the concrete resulting in a coma and life long brain damage. Alternatively, let’s say the woman never struck her head on the ground, but the one punch to the nose or head caused the same result. Again, what is the appropriate charge?
Clearly, the end result is “serious physical injury.” But as we noted earlier, one’s intent is critically important and an element of this crime. Did the man who threw one punch have the intent to “merely” cause physical injury such as a black eye or a fractured nose or did he have something much more devious in mind such as shattering an eye socket causing blindness or, as in our facts, brain trauma and a coma?
Fortunately, there is no machine that can read all of our minds and ascertain what we are thinking on a regular basis. Unfortunately, intent is often hard to determine. Can one punch in the heat of the moment be the basis of the intent to cause “serious physical injury?” Objectively, in your average street altercations (if there is such a thing as “average”), are combatants looking to disfigure or destroy the organ of their adversary? Regardless of the answer to these questions, intent can be formed in a moment and should not be confused with pre-mediation. But without more than one punch, proving someone had the intent to cause serious physical injury with that life altering strike is a difficult task (that is not to say it should not be pursued).
Some ground level questions that should be asked might be as follows:
What, if anything, did the defendant say before and after he threw the punch? Did the defendant strike the complainant after she was on the ground” What was the defendant’s posture after? Did he stand over her, mock her or get down in her face and curse her? Was the punch a full on swing or a smaller jab? Was the woman standing up when she was struck or was her head close to a wall or ground where the argument can be made that he knew it would “crash” into the concrete?
Looking at this case from the outside, we all feel for the complainant and her family. Subjectively, we all probably would agree as sons and daughters and mother ad fathers that potentially one year in jail on a Third Degree Assault in exchange for putting someone in a coma is “not enough.” However, for better or for worse, the law is the law. If Mr. Fuller intended only to punch Ms. Rosas once and giver her a black eye or big welt on her head, but instead she suffered this horrific injury, the answer is clear. Without intending to cause this “serious physical injury ” he is only liable for misdemeanor Assault in the Third Degree. Whether the evidence before a jury will establish otherwise or whether that same jury is swayed by the extent of the injuries is something that only time will tell.
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 the accused throughout the New York City region in all states of criminal cases from investigation through trial.