New York Criminal Lawyer Blog

One of the most common crimes prosecuted by Assistant District Attorneys in New York (Manhattan, Brooklyn, Queens, Bronx and beyond) is the offense of Assault in the Third Degree pursuant to New York Penal Law 120.00. When one is accused of Assault in the Third Degree, the prosecution must set forth certain elements. One critical element is that the complainant or victim must have suffered physical injury. Generally, "physical injury," as defined under section 10.00(9) of the New York Penal Law, is an "impairment of physical condition or substantial pain." Having presented this definition, is a complaint sufficient accusing you of Assault in the Third Degree if it merely states that the complainant suffered "substantial pain" as a result of your actions, but without "fleshing out" the "substantial pain?" Is more needed for the prosecution's case to survive a motion to dismiss from your New York criminal defense attorney?

According to a Manhattan Criminal Court Judge, merely asserting that a complainant suffered "substantial pain" without more is not sufficient. In People v. A. S., decided May 11, 2010, the complaint against the accused alleged as follows:

"Deponent [a police officer] is informed by a person known to the District Attorney's Office [the complainant] that said defendant approached said informant and shoved and hit said informant about the body with his fist, causing substantial pain."

In analyzing whether or not to dismiss the complaint, the Court noted that "'petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives' are not acts that constitute assault. (See Philip A., 49 N.Y.2d at 200 (quoting Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p. 330); People v. Chiddick, 8 N.Y.3d 445, 448 [2007].)"

Upon reviewing the complaint and applicable case law, the Court stated:

"In the instant matter, the court must consider whether the allegations and all reasonable inferences therefrom are sufficient to establish that the complaining witness experienced substantial pain and therefore suffered physical injury. 'Substantial pain' is 'more than slight or trivial pain' but 'need not…be severe or intense.' (Chiddick, 8 N.Y.3d at 447.) The Court in Chiddick identified 'several factual aspects…that can be examined to decide whether enough pain was shown to support a finding of substantiality[,]' including: (1) the injury that the defendant inflicted, viewed objectively, (2) the complaining witness's subjective description of what he or she felt, (3) whether the complaining witness sought medical attention, and (4) the motive of the offender. (Id. at 447-48.)

Here, the only allegation as to the alleged assault is that the defendant shoved and hit the complainant about the body with his fist. The accusatory instrument alleges that this caused the complaining witness substantial pain. The court concludes that the utter absence of any description of the injuries allegedly experienced by the informant/complainant renders this accusatory instrument defective, the element of physical injury not being sufficiently alleged."

The above decision by the court to dismiss the complaint against the defendant in this matter was based in both law and facts as set forth in that particular complaint. Whether this decision as well as the Chiddick case are applicable in your criminal matter is something that cannot be addressed through a blog entry, but an issue that you should consider discussing with your own legal counsel.

For more information on the crime of Assault in New York, please follow the highlighted link. Additional information can be found at the New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.

Crotty Saland LLP is a New York criminal defense firm. Founded by former Manhattan prosecutors, the New York criminal defense lawyers at Crotty Saland LLP represent the accused throughout the New York Cit region.

Criminal defense attorneys and lawyers throughout New York City regularly deal with the various crimes relating to and degrees of Assault found in Article 120 of the Penal Law. The most common, Assault in the Third Degree ( New York Penal Law 120.00), is a misdemeanor offense punishable by up to one year in jail. A more serious crime, Assault in the Second Degree (New York Penal Law 120.05), is a felony offense punishable by up to seven years in state prison. Although it will be discussed further below, one of the more common reasons why an intentional misdemeanor Assault in the Third Degree is "elevated" to a felony Assault in the Second Degree is because a "dangerous instrument" is used during the commission of the lesser crime. While there are various legal reasons to raise the level of the crime, where that basis is the use of a "dangerous instrument," the actual injury inflicted for the misdemeanor and felony level crime is no different. As will be explained below, if you punch someone in the eye and give him a black eye that swells shut you may face the misdemeanor crime. If you do the same thing, but use the heel of your shoe, a baseball bat or even the door of your car, your crime may be elevated to a felony because your use of a "dangerous instrument." With this in mind, I will first deal with the applicable definitions of the crimes of Assault in the Third and Second Degrees as well as what constitutes a "dangerous instrument." Once that is done, I will address a few court decisions that have addressed when an instrument is considered "dangerous" under the law and, as a result, and individual had his or her misdemeanor Assault charge raised to a felony offense.

NY PL 120.00(1) - Assault in the Third Degree

"A person is guilty of Assault in the Third Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person."

NY PL 120.00(2) - Assault in the Second Degree

"A person is guilty of Assault in the Second Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument."

NY PL 10.00(13) - Definition of Dangerous Instrument

“'Dangerous instrument'” means any instrument, article or substance, including a “'vehicle'” as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury."

Now that you have the definitions, continue reading for the analysis...

Continue reading " New York's Assault in the Second Degree & Your Criminal Defense: How Prosecutors Can "Bump Up" Assault in the Third Degree (NY PL120.00) to a Felony of Assault in the Second Degree (NY PL120.05(2))" »

A Queens County Supreme Court Judge acquitted Hiram Monserrate of felony Assault and convicted the embattled state senator of Assault in the Third Degree, a misdemeanor. More specifically, the judge found him guilty of New York Penal Law 120.00(2). According to the New York Penal Law, an individual is guilty of 120.00(2) when he or she recklessly causes physical injury to another person. This offense differs greatly from 120.00(1) which requires that a person intentionally causes physical injury to another person. Regardless of the theory of the case, anyone convicted of a misdemeanor Assault faces up to one year in jail. However, a judge has the discretion to sentence that person to no jail at all. While the court has not sentenced Senator Monserrate, a full order or protection was issued thereby preventing him to have any contact with the victim of his crime.

While I did not sit in the courtroom listening to the testimony, the decision rendered by the court does not surprise me. If Senator Monserrate had been convicted of the felony, the state would have been thrust into terrible turmoil and a horrendous stalemate. Removing Senator Monseratte from his seat would have resulted in 31-30 standoff in the state senate. Did this fact impact the court's decision? Did the judge "split the baby" by finding Mr. Monserrate guilty of a crime, but a significantly lesser offense? Are we over analyzing his decision and, at bottom, the facts just did not support the People's case?

What is slightly confusing, and in my opinion gives credence to the political and legislative implications having an impact on the court's decision is the following. If the court truly believed that the People did not prove the intentional Assault beyond a reasonable doubt, then why did the court issue a full order of protection preventing Senator Monserrate from having contact with the victim? If his actions were reckless, as opposed to intentional, then shouldn't the court permit the two, as consenting adults, to continue their relationship? If a person intentionally assaults another it is clearly understandable that a judge would want to make sure a victim, domestic or not, is safe. An order of protection or restraining order may be necessary in those situations. However, if the judge in the Monserrate trial found that the defendant acted recklessly, i.e., it was an accident, then there is an argument to be made that there is no real reason to issue an order of protection. Was there evidence presented that indicates he is a dangerous man who has hurt her in the past? Was there evidence that Senator Monserrate has injured her intentionally or did so in this case? If there was, then why was he not convicted of the intentional Assault crime?

Taking this theory further, one must understand that under New York law, if one perpetrates an intentional misdemeanor Assault, but uses a dangerous instrument (here a glass), then the crime is technically "bumped up" to a felony offense. Following this out further, if the judge found that Monserratte acted intentionally, then as a matter of law he would have to find him guilty of the felony Assault as a "bump up." One step further would lead us to the legislative implications in New York State as discussed above.

It is interesting to note that the judge found that Senator Monserrate did not act recklessly in slicing the victim, but acted reckless and caused physical injury when pulling her away from the railing and to the hospital. Hmmm....how is it that the court found that his actions cutting the victim were not criminal at all, but his alleged attempt to help her by dragging her to the hospital was criminal? Not only does that appear to be inconsistent, but how did his dragging her away cause her substantial pain or a physical injury? Wasn't that sustained by the fact that a glass cut up her face?

Despite my conclusions, It is very easy to be an arm chair quarterback of the criminal justice system after the fact. We all like to draw our own conclusions even though the vast majority of us were not in that courtroom. Certainly none of us were there the night Senator Monseratte assaulted his victim. All of us, regardless of the crime, should be afforded the benefit of the doubt. After all, it is the People who have the burden to prove their case and we are all safely wrapped in a blanket of innocence until they establish otherwise. All of us, including Senator Monserratte, rightfully deserved that same inference. Unfortunately for Senator Monserratte, however, a judge has stripped him of that presumption of innocence where he now awaits his fate at sentencing for recklessly assaulting a woman.

The best criminal defense of an Assaultcase depends on many factors. Regardless of where you are in New York, your criminal defense attorney should always pursue numerous legal angles. Is the Assaultcomplaint/information against you legally sufficient? Has the complaint/information established a physical injury or substantial pain? Are there any witnesses or are there pictures or video of the incident? How has the evidence been preserved? Not an exhaustive list, the above questions are tremendously important ones that your criminal defense attorney needs to know when defending your Assault case.

It is also very important to understand as the accused the nuances between certain types or levels of Assault. For example, if you are charged with intentional Assault in the Third Degree pursuant to P.L. 120.00(1), but you were acting recklessly, then your actions may or may not satisfy the intentional element of the offense. Instead, a charge of P.L. 120.00(2) would be appropriate. In the latter form of Assault, the intentional requirement is replaced with a reckless element. Although the levels of the crime are the same, they are both misdemeanors, if your mental state was reckless as opposed to intentional, then P.L. 120.00(1) would not be the appropriate charge.

Another issue that I have witnessed both as a prosecutor and criminal defense attorney is where a person is charged with Assault in the Second Degree, a felony punishable by up to seven years in state prison, but a critical element is not made out. Pursuant to P.L 120.05(1), an individual is guilty of this charge when with the intent to cause serious physical injury to another person, he causes such injury to such person or to a third person. Here, your criminal defense attorney needs to challenge the validity of the "serious physical injury." Unlike mere "physical injury" such as a black eye or bloody cut lip, "serious physical injury" requires the creation of substantial risk of death or causes, among other things, protracted disfigurement or impairment of health. So, in the event that it was your intent to cause "serious physical injury," but the injury suffered did not rise to this level, then you are not guilty of Assault in the Second Degree. Moreover, if you were reckless in your actions and caused "serious physical injury," then you must have used a weapon or dangerous instrument to cause this injury. The recklessness by itself will not be sufficient to satisfy the elements of Assault in the Second Degree.

The nuances of each and every Assault charge in the New York Penal Law are extensive. It would take hours of discussion to go through each. That being said, it is imperative that the time is spent analyzing the specific charges levied against you or a loved one to make sure that the elements of each crime charged are satisfied. The skilled criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP will take the time to conduct this thorough examination and take you through the process in order to present the strongest defense and set forth the most compelling arguments to preserve your rights, liberty and integrity. We know that each case requires this attention and our results speak for themselves.

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Your buddy is waiting to be arraigned at 100 Centre Street in Manhattan for Assault in the Third Degree pursuant to New York Penal Law 120.00(1) for splitting someone's lip with his fists. The worst part is you need an experienced criminal defense attorney as well. Why? Well, you are sitting right next to him. So, here is the question. How is it that he is the guy who threw the punches, but you were arrested as well? The answer is found in New York Penal Law section 20.00. As we like to call it...accomplice liability.

Under New York law, one is liable for the acts of another when:

"When one person engages in conduct which constitutes an offense [Assault in the third Degree in our hypo], another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."

To flesh this out a little, I will address this statute and concept in practical terms and in connection with a recent Manhattan Criminal Court decision. In People v. Sean Everson, 2009NY005871, decided, July 21, 2009, an information alleged that the defendant and others surrounded the complainant preventing him from leaving the location of the incident. Another individual, not the defendant, then struck the complainant in the stomach causing substantial pain. The defendant, however, did not strike the complainant.

The criminal defense attorney in Everson argued that the information or complaint was facially insufficient because it did not identify the defendant as the person who intentionally struck and injured the alleged victim. More specifically, the defendant claimed that there was "no causal connection between the alleged assault and the defendant's conduct of surrounding" the complainant. Furthermore, the attorney argued that the information was not facially sufficient because it did not set forth that "the defendant surrounded the informant with the intent of causing physical injury, or that the defendant's actions enabled or encouraged the unapprehended individual to assault" the complainant. Unfortunately for Mr. Everson, the court disagreed.

The courts reasoning after the jump...

Continue reading "Accomplice Liability (New York Penal Law 20.00) in Conjunction with Assault in the Third Degree (New York Penal Law 120.00)" »

Crotty Saland, LLP, one of the top New York City and Manhattan based criminal defense firms, is pleased to announce the dismissal of the criminal charge of Assault in the Third Degree, pursuant to NY Penal Law 120.00(1), against our client. The case, a difficult one to defeat, involved an alleged altercation between our client during a "road rage" type incident.

After our client's car was struck by the complainant's vehicle, our client, driving a mini-cooper, confronted the complainant over the incident. Our client exited the mini-cooper and approached the other vehicle. To the "big" surprise of the complainant, the man who stepped out of the mini-cooper was 6'10 and 320 pounds (I can't speculate how he got into that mini-cooper). As the incident unfolded, the police claimed they observed our client strike the complainant through the window of the car. Ultimately, our client was arrested.

Despite the "big" issues in the case, the case in its entirety was dismissed after almost eight months of legal wrangling. Although it took some time, the client and his family were more than pleased with the outcome.

If you or a loved one is in need of an experienced criminal defense lawyer for a violent or white collar crime, contact the criminal defense attorneys and former prosecutors at Crotty Saland, LLP.

NY criminal defense lawyers and attorneys who handle Assault cases in New York City should take notice. In People v. Sergio Garcia, 2009NY017018, a Manhattan Criminal Court Judge recently upheld the facial sufficiency of a complaint alleging Assault in the Third Degree, pursuant to Penal Law 120.00(1), where the defendant "punched [an officer] in the chest, thereby causing [that officer] to appear to lose his breath momentarily."

According to Penal Law 120.00(1), a person is guilty of Assault in the Third Degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person. Additionally, physical injury requires impairment of physical condition or substantial pain.

In finding the complaint against the defendant sufficient, the court stated that:

"Causing someone to be unable to breath, albeit momentarily, clearly supports an impairment of a person's physical condition, i.e. - breathing, which in the case at bar is directly attributable to the defendant's alleged actions. In the medical field (and as every First Class Boy Scout is trained) it is well settled that among the three most exigent medical "hurry cases" for first aid purposes are 1) heart attack, 2) severe bleeding and 3) impairment of breathing. Such conditions are considered to be potentially life threatening as they relate to fundamental systems necessary to the continuation of bodily function. The even momentary compromise of any such function, is of great concern to the overall integrity of the human body. Such compromise therefore clearly fits within the meaning of the statue."

It is important to note that although this case extends the definition of "impairment of physical condition," it is not a case that is controlling on other courts in Manhattan or other jurisdictions such as Brooklyn or the Bronx. In other words, this decision is not an appellate decision that binds lower courts in any New York City court. Nonetheless, it is an important decision that at a minimum sets forth the idea that one must not suffer a broken nose, bloody lip or black eye to be the victim of Assault in the Third Degree under the law in New York. Clearly, the bar dictating injury may be much lower.

Because courts can view facts and the law differently even within the same building, it is imperative to be represented by experienced criminal defense attorneys who, like the former prosecutors at Crotty Saland, LLP, are able to assess the facts before them, develop a plan of attack and implement a strong and viable criminal defense.

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The top criminal defense attorneys in New York and New York City know there are many ways to "skin a cat" in order to achieve the best results for their clients in a criminal case. Sometimes we use "honey" and "sometimes" it is vinegar. A recent decision in Manhattan Criminal Court involving the charges of Assault in the Third Degree (Penal Law 120.00(1)) and Reckless Driving (Vehicle and Traffic Law 1212) strengthen the "vinegar" approach by adding another judicial decision to our criminal defense arsenal of cases to utilize in a client's criminal defense.

In People v. Warmann DiPoumbi, 2008NY068631, decided April 28, 2009 and published in the New York Law Journal on May 7, 2009, a Manhattan Criminal Court Judge dismissed the charges of Assault and Reckless Driving based, in part, for facial insufficiency. The complaint alleged that the defendant drove through a stop sign without stopping. After the police stopped the defendant, the defendant opened the car door and the door struck the police officer causing "swelling and substantial pain."

Continue reading "One of the Best Ways to Beat Your Assault and Reckless Driving Case in NY - Challenge Facial Sufficiency" »

Any NY criminal defense attorney who has “been around the block” even just one time should be able to advise you that one of the key components to Assault in the 3rd Degree, unlike Harassment in the Second Degree, is that you inflict or cause a physical injury to another person. Well, what happens if you strike or hit someone and you don’t bust their lip, give them a black eye or, or cause any pain at all? Guess what…your weakness or their toughness could be a blessing to you!

While you can certainly be charged with Attempted Assault, a “B” misdemeanor punishable by up to 90 days jail, there is another offense lingering out there in the New York Penal Law. That offense is Harassment in the Second Degree. According to NY Penal Law 240.26:

A person is guilty of Harassment in the Second Degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or
2. He or she follows a person in or about a public place or places; or
3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Although there are numerous different elements than Assault, one of the most glaring differences is that Harassment in the Second Degree does not require that you cause any physical injury, substantial or otherwise, to the victim. Having established, in general, how the crimes are different, the best part is…if you strike someone and don’t cause any injury (go wimps!) you may be charged with Harassment, merely a violation and not a crime. That is right. Harassment is a violation and not a crime. Although it is punishable by up to fifteen days jail (that doesn’t mean you will get it), no matter what your sentence, you will not get a criminal record as a result. Therefore, a plea to Harassment in the Second Degree will not be an offense where you will ever have to say to an employer, friend or family member that you have been convicted of a crime.

Although Harassment in the Second Degree is not a crime, that does not mean that you should roll over and accept a plea to this offense. Maybe it is an appropriate disposition and maybe it is not, but either way, a full legal analysis and an aggressive criminal defense must be implemented before accepting any deal. The criminal defense attorneys at Crotty Saland, LLP stand ready to do just that and whatever else it take to legally protect your liberty, integrity and rights.

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The NY criminal defense attorneys at Crotty Saland, LLP do their best to keep on top of the changes in criminal statutes and new court decisions regarding those statutes. When there is a new law or pertinent decision by the courts regarding any criminal law we do our best to relay that to our readers. One such crime, Assault in the Second Degree pursuant to PL 120.05(12), has been added to New York's criminal books as of June 2008.

Pursuant to PL 120.05(12), Assault in the Second Degree, a person is guilty of this offense when "with the intent to cause physical injury to a person who is sixty five years of age or older, he or she causes such injury and the actor is more than ten years younger than that person." This new crime is a "D" felony punishable by up to seven years in state prison.

What this crime does is elevate what was previously the crime of Assault in the Third Degree, an "A" misdemeanor punishable by up to one year in jail, to a felony in certain limited situations. Specifically, if you intentionally cause physical injury to an older person and you are more than ten years younger than that person your actions may send you to state prison where before your actions in the worst case scenario might send you to jail for up to one year. In short if you assault a young person and cause physical injury you may be guilt of Assault in the Third Degree, a misdemeanor. If your actions and the physical injury are exactly the same, but the victim is sixty five and you are at least ten years younger, under the new statute you are facing a felony.

Clearly, the legislature has taken a stance on protecting people sixty five years old and older. While we can all agree that every person needs protection from assailants and older people are more vulnerable, this statute gives prosecutors a significant "bite" behind their "bark." In the event you are accused of Assault or any violent crime, contact the NY criminal defense attorneys and former Manhattan prosecutors at Crotty Saland, LLP to help you navigate the criminal waters.

Christoper Carter was acquitted in New York County (Manhattan) Criminal Court after a jury found the prosecution did not prove he committed the crime of Assault in the Third Degree, a misdemeanor punishable by up to one year in jail, beyond a reasonable doubt.

While many people know the basics about this story, the case is centered around an altercation at a sports club. Stuart Sugarman and Christopher Carter were both members of Equinox, a gym in New York. During a spin class Sugarman became loud and apparently rude. To quiet him down, Carter allegedly lifted Sugarman's bike and /Sugarman hit the wall, fell to the floor, and damaged discs in his back. As a result of this incident, the police and Manhattan District Attorney's Office charged Carter with Assault in the Third Degree.

This case is interesting on its own merits, but it also gives us the opportunity to examine the crime of Assault in the Third Degree. The first issue one must analyze in a Third Degree Assault case is whether Carter (or any defendant) caused physical injury to a complainant. The second is whether he intended to cause physical injury or, in the alternative, he was reckless in causing physical injury to the complainant.

Dealing with the first issue, physical injury is described as impairment of one's physical condition or substantial pain. However, merely stating someone suffered pain without more may not be enough to withstand an experienced criminal defense attorney's motion to dismiss or an argument to a jury that physical injury was not proven beyond a reasonable doubt. In fact, the Court of Appeals, the highest court in New York State, has found that physical injury was not established where a complainant was punched repeatedly but could not articulate and specify the pain. The case cited here is not alone on an island. There are a countless cases following this decision and cases which can be put to use in defending your matter.

Even assuming the complainant suffered physical injury, the second issues is whether the defendant's actions were intentional or reckless. The key element for intentional behavior is that the defendant must have acted in a manner where his "conscious objective" was to cause a particular result. As stated above, if the defendant was accused of acting reckless, then it must be proven beyond a reasonable doubt at trial that he was aware of and consciously disregarded a substantial and unjustifiable risk that a particular result would occur or that such circumstances existed. It is important to note that the risk must be of such nature that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

As will be discussed in another entry and on a later date, there are may cases interpreting the meaning of both intentional and reckless. For the purpose of generally understanding Assault in the Third Degree, however, it should be sufficient for now to recognize that there must be a specific and articulable injury along with an intentional action or reckless behavior that caused that injury.