Assault in the Second Degree Defined
Assault in the Second Degree is defined in NY PL § 120.05 as when "With intent to cause physical injury to another person, he or she causes such injury to such person or to a third person." The statute also applies when one purposely causes substantial pain to another, engages in reckless conduct which creates a grave risk of serious physical injury to another and thereby causes serious physical injury to another, or displays what appear to be a dangerous instrument and, in the course of and in furtherance of the commission or attempted commission of a felony, causes physical injury to another (NY PL § 120.05).
Importantly, the statute’s language specifically requires that the defendant "intended" to cause pain to the other person. This means that defendants charged with Assault in the Second Degree do not have the ability to say that they "didn’t mean" to hurt someone – that defense does still exist, it just applies to lesser charges than Assault in the Second Degree.
Further, Assault in the Second Degree is a Class D felony (NY PL § 70.00) and the Crime Classification Index specifies that the crime is unclassified. This may seem confusing but it simply means that the legislature intended the maximum sentence to be that of a Class D felony, a term of imprisonment of no more than seven years in state prison (NY CPL § 70.00) . However, as a class D unclassified felony, if the defendant was previously convicted of an assault crime against a child, then Assault in the Second Degree becomes a Class B felony, where the defendant faces a minimum prison term of five years, a maximum of 25 years and no possibility of parole (NY PL § 70.00).
Finally, Section 120.05 also specifies that one would be charged with Assault in the Second Degree if he or she recklessly causes serious physical injury to another person. "Recklessly" means when someone is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists that constitutes the offense (NY PL § 15.05).
Section 120.05 also states that one would be charged with Assault in the Second Degree if they cause another person to come into contact with an object or weapon, causing the victim physical injury (a New York Courts decision specified that this may include a can of soda (People v. Young).
As stated above, New York Penal Law is a bit tricky because the same language used across various sections can imply a different type of charge. For example, while the elements of Assault in the Second Degree are similar to those in Assault in the Third Degree, the key difference rests with the word "intent." Because Assault in the Second Degree requires that the defendant intended to hurt someone, the charges are much more serious than those in Assault in the Third Degree, where the defendant did not purposely intend to injure anyone.
The Legal Effects of Assault 2
Below are some of the other consequences for conviction of Assault 2 that may occur:
- Fines. N.Y. Penal Law § 60.00(b) sets forth the maximum fine associated with a class D felony. In general, you may face a fine of up to $5,000. The terms and conditions of any fine vary depending on your offense and criminal record.
- Probation. Under N.Y. Penal Law § 65.00, if you are sentenced to probation, you must "regularly visit or personally report to the probation officer….submit samples of your blood, urine, or other substances for analysis…. [and] submit to reasonable searches and seizures of your person, residence and vehicle by the probation officer."
- Imprisonment. As summarized above under N.Y. Penal Law § 70.00, if convicted of Assault in the Second Degree, you may face a sentence of 3 to 7 years imprisonment. However, it is important to note that those who have a prior felony conviction may face longer prison terms if found guilty of Assault in the Second Degree.
Those convicted of a D felony may be eligible to participate in shock incarceration programs (also called boot camp programs), according to N.Y. Penal Law § 75.00. You may qualify for the program if you:
- are a non-violent felon;
- are between the ages of 16 and 18 at the time of incarceration in the Department of Correctional Services;
- have never been convicted of a felony before;
- have never previously participated in a shock incarceration program; and
- are sentenced and committed to a term of imprisonment of more than one year but less than 4 years.
These programs are intended to encourage and facilitate rehabilitation and education in non-violent young people.
Defenses to Assault 2 Offenses
Lack of Intent – Second Degree Assault, under New York Penal Law § 120.05, requires that, in addition to the examples of conduct listed above, the defendant also intended to inflict physical harm on the alleged victim. When facing a charge of Second Degree Assault, or Assault in the Second Degree, it is therefore important to analyze the state of mind that the defendant had at the time of the incident. This, perhaps more than any other factor, will determine the guilt or innocence of the person charged under Penal Law § 120.05.
Reasonable Belief That Nondeadly Force Was Necessary – The Penal Law states that Second Degree Assault includes causing "physical injury to another person by means of a deadly weapon or a dangerous instrument." "Physical injury" is defined as "impairing physical condition," and "physical injury" is further defined as a cut, abrasion, bruise, fracture, loss or destruction of a body member or organ, and other physical impairment. If a defendant can show that a reasonable person would have been justified in believing that nondeadly force was necessary to protect himself, he may have a valid defense against the charges of Assault in the Second Degree.
Self-defense – The law states that a person is permitted to use reasonable physical force to defend himself from the use or imminent use of physical force by another person. However, the law also requires that the person actually believe that the use of physical force is necessary to protect himself from the use or imminent use of unlawful physical force, and that the amount of physical force must be reasonable in relation to the amount of force that he allegedly faced. In other words, if someone uses a gun to shoot at someone who slapped him, this would be unreasonable because he did not need to use the deadly force of a gun in order to defend himself from the "nondeadly force" of a slap.
Recent Case Examples
In a recent case, the defendant was charged with assault in the second degree for stabbing the victim with a knife, and the indictment was not dismissible upon the ground that it failed to charge the underlying felony. (See People v Pasley, 2011 NY Slip Op 04481). Following the complainant’s testimony that both he and the defendant shared a gun during a previous robbery, and that the complainant observed a .38 caliber handgun in the defendant’s jacket pocket and even put his own hand on it, both in asserting physical control over the gun, the Appellate Division found that the complainant’s testimony provided an adequate basis for the jury to have reasonably concluded that the defendant intended to use the gun as the means of causing physical injury to the complainant. As such , the sufficiency of the evidence was established, and the objection to the verdict on that ground was rejected (People v Motley, 2011 NY Slip Op 04682).
Further, regardless of other evidence that the defendant set fire to a tenant’s apartment in retaliation for her filing a housing discrimination case, a prosecutor’s failure to present a specific state of mind regarding the defendant’s intent to retaliate when he set the fire did not require reversal, since the indictment adequately alleged the requisite specific intent to commit the underlying crimes and a reasonable view of the evidence supported a similar finding by the jury, even without charging a sufficient legal theory. (See People v Peters, 2011 NY Slip Op 05805).
Aid and Resources
When facing a charge of Assault in the Second Degree, speaking to an experienced criminal defense attorney sooner rather than later is crucial. Your attorney will be able to explain the charges against you, the potential penalties, your options, and the next steps.
The cost of hiring a defense attorney can present a hardship. However, if you are unable to pay for a criminal defense you may qualify to apply for help from the Legal Aid Society. They provide criminal defense representation at no/low-cost, depending on your financial situation and charge. In most cases you will have to apply and be approved by a judge before you can be represented .
For those who do not qualify, another option is to use an attorney referral service. These organizations match clients with attorneys suited to both parties. The New York City Bar Association’s Lawyer Referral Service offers this type of service. Simply complete a survey online then they will refer you to one of over 150 local attorneys to set up a 30-minute consultation for a low set-consultation fee. Our attorneys at The Law Offices of David E. Rosenthal can also schedule free legal consultations with you to discuss your case and determine if a positive working relationship is feasible.