One of the most common questions that arise in the practice of New York criminal law from the perspective of both a prosecutor (Assistant District Attorney) and a criminal defense attorney or lawyer is when an assault is an Assault (note the big scary capitalization of the word). That’s right. When does an accused’s conduct go from noncriminal in nature to actions that are legally sufficient to establish the crime of Assault in the Third Degree?
Is a slap different than a closed fist punch in the eyes of the New York Penal Law? What about a shove, kick or pinch? Do any of these constitute a misdemeanor offense punishable by as much as a year in jail? At what point has your conduct and resulting injury reached the level of New York Penal Law 120.00, Assault in the Third Degree? Generally speaking, you are guilty of NY PL 120.00(1) if and when you intentionally cause physical injury to another person, but how far are courts willing to go under pressure by Assistant District Attorney’s to prosecute those they believed have committed a crime?
Certainly, a mere push or nudge is likely not enough to substantiate the crime of Third Degree Assault in New York. See People v. Doe, 85 Misc.2d 592 (Utica City Court 1976) (who doesn’t like citing a Utica City court case from 1976 as legal precedent!!!??). Instead, the Court of Appeals (New York State’s highest court) has ruled that the NYS legislature wanted more than a subjective view of an injury to be used in ascertaining whether the legal threshold had been met when in using the “word ‘substantial’ in the Penal Law definition [of “physical injury”].” Matter of Philip A., 49 N.Y.2d 198, 200 (1980). Citing the Revisors’ notes’, the Court made it even more clear that “petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives’ are not within the definition.” Id. (quoting Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p. 330).
Whether or not “substantial pain” has been proven (beyond a reasonable doubt) is left to the fact finder. However, there is “an objective level . . . below which the question is one of law, and the charge should be dismissed. Id. Meaning, even before a fact finder examines the evidence, a level of pain or injury must first be demonstrated. For example, in Philip A, 49 N.Y.2d at 200, proof that a victim of a Third Degree Assault “was hit, [which] caused  pain, the degree of which was not spelled out, caused him to cry and caused a red mark” was “insufficient to establish ‘substantial pain'” as set forth in the New York Penal Law. See also People v. Cheeks, 161 A.D.2d 657 (2d Dept. 1990) (although a defendant struck a complainant in the head more than once with a firearm and suffered an abrasion, the testimony did not satisfy Assault in the Third Degree in that a degree of pain was needed for “physical injury” and “substantial pain.”)
The above case is not the only one that can help guide defendants and attorneys in determining with a complaint is facially sufficient or proof exists beyond a reasonable doubt. For example, a fairly insignificant abrasion that was treated with a stitch did not satisfy the elements of Assault. People v. Contreras, 108 A.D.2d 627, 628 (1st Dept. 1985). Further, a minor cut that was a centimeter long and scratches have been found not to constitute physical injury. People v. Jiminez, 55 N.Y.2d 895 (1982). See also People v. Ruttenbur, 112 A.D.2d 13 (4th Dept.1985). Not all the examples, even where a firearm is involved in an Assault crime does not mean the People have met their legal burden of physical injury and substantial pain. People v. Chandler, 120 A.D.2d 542 (2d Dept. 1986); People v. Rojas, 61 N.Y.2d 726 (1984); People v. Francis, 112 A.D.2d 167 (2d Dept. 1985). Its worth noting even throwing a complainant around like a rag doll into a wall and delivering a punch to the head resulting in treatment at a hospital for severe headaches may not be sufficient either. People v. Thorpe, 245 A.D.2d 472 (2d Dept. 1997)
The above analysis of the misdemeanor crime of Third Degree Assault is not extensive, but it should give you at least some foundation to understand the New York Penal Law so you can begin your educated conversation with your criminal defense attorney. To read more about New York Assault crimes, either felony or misdemeanor in nature, follow the links above or go directly the the Assault Crimes section of the Crotty Saland PC website and NewYorkCriminalLawyerBlog.Com. There you can find not only analysis of New York’s various assault statutes, but a review a legal decisions as well.
A New York criminal defense firm founded by two former Manhattan prosecutors, the New York criminal lawyers at Crotty Saland PC represent clients accused of and investigated or arrested for Assault throughout New York City and many of the surrounding suburban municipalities.