Does Merely Asserting “Substantial Pain” Satsify the Prosecution’s Burden to Sustain a Complaint for Third Degree Assault (NY PL 120.00)

You slap someone in the face. Certainly its not nice, but is it a Third Degree Assault in New York? You punch someone in the gut. Again…not nice…but is it an Assault in the Third Degree? You kick someone in the ribs (maybe they deserved it and you were merely defending yourself this time!). Ouch….but should you be arrested for violating New York Penal Law 120.00(1)? An “A” misdemeanor that will smack you with a lifelong criminal record, while you may need a criminal lawyer to counsel you through the criminal process in New York, you certainly don’t need a criminal defense attorney to tell you that an arrest for PL 120.00 is potentially a life changing matter.

Whether you are issued a New York City Desk Appearance Ticket (commonly called a DAT or an appearance ticket) for PL 120.00 or you spend 24 hours waiting in jail to see a judge, the law of Third Degree Assault is fairly straight forward on its face. That is, if you intentionally (there is also a reckless provision) cause physical injury to another person, you are guilty of misdemeanor Assault. Seems fairly easy for a prosecutor to prove, right? While it certainly may be fairly simple for a New York City (or any jurisdiction for that matter) Assistant District Attorney to establish in a complaint or prove beyond a reasonable doubt at trial, not everything is as easy as it seems.

In People v. Jonathan Perez, 2012QN065501, NYLJ 1202603156067, at *1 (Crim., QU, Decided May 22, 2013), the defendant was charged with, among other crimes, Assault in the Third Degree pursuant to New York Penal Law 120.00. It was alleged in pertinent part that the “four corners” of the complaint (the charging document used in court), that the defendant “grabbed [Sonia Cruz], pushed her and punched her in the back, causing her substantial pain.” Well, there you go. The prosecution alleged “substantial pain.” That should be enough for the People to establish the elements of intentional Third Degree Assault, ie, the physical injury requirement. Right?

Simply, the answer here is “wrong.” Even for the minimum requirements of facial sufficiency, more is needed to establish the elements of PL 120.00. Without going into all the detail here (this case is certainly worth reading from start to finish as it addresses numerous higher court decisions directly related to when the physical injury” element of Assault is met), the court held that the case should be dismissed. As the court noted, “[w]hile [the People] are not required to describe the exact nature and extent of the complainant’s physical injury at the pleading stage, they must allege some objective evidentiary facts to support an allegation of substantial pain.” A conclusory statement that mimics the statute is not the same as describing how the injury caused this pain including, for example, bruising, redness, swelling, welt marks or bumps (not a mandatory or exclusive list) that presented themselves as a direct result of the incident. Additionally, the prosecution could have alleged the length of time the physical injury lingered and what, if any, treatment the complainant sought or side effects he or she suffered.

A very brief analysis of Perez, should you be charged with or arrested for Third Degree Assault, this case may be one you or your criminal lawyer should be familiar with. Will it help you in your particular case, maybe not, but the decision is one that provides a very good overview of this crime and its elements.

To learn more about Third Degree Assault, other Assault crimes or New York City Desk Appearance Tickets, follow the highlighted links throughout this blog entry or click on the links below to the Saland Law PC website and the NewYorkCriminalLawyerBlog.Com.

The two New York criminal lawyers and former Manhattan prosecutors at Saland Law PC represent clients accused of Assault and other crimes throughout the New York City and suburban regions.

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