new york penal code 120 02 reckless assault of a child

New York Penal Code 120.02 is a law that makes it a crime to recklessly assault a child under certain circumstances. This law is meant to protect young children who can be seriously injured by reckless behavior from adults. Let’s take a closer look at what this law says and what it means.

What Does the Law Say?

There are two main parts to Penal Code 120.02:

1. It is illegal for a childcare provider or employee to recklessly cause serious physical injury to a child under 11 years old in their care.
2. It is illegal for anyone 18 or older to recklessly cause serious physical injury to the brain of a child under 5 by shaking, slamming, or throwing the child against a hard surface.

So in basic terms, this law makes it a crime for an adult to seriously hurt a young child’s brain by being reckless – either through shaking or throwing against something hard. It focuses on protecting kids under 5 whose brains are still developing.

What Qualifies as “Reckless” Behavior?

For behavior to be considered reckless under this law, the adult has to be aware that their actions have a substantial risk of hurting the child, but they disregard that risk and act anyway. For example, shaking a baby vigorously has a high chance of causing brain damage, so continuing to do it anyway would show recklessness. Throwing a child forcefully into their crib also has an obvious risk of injury.

On the other hand, accidentally dropping a child while stumbling probably wouldn’t meet the standard for recklessness. The adult didn’t consciously disregard a known risk of harm. There has to be some element of choice to act dangerously despite the risk.

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Legal Scenario: What Would You Do?

Scenario

Your partner's ex-spouse is accusing you of recklessly injuring their 3-year-old child after the child fell off a backyard trampoline while in your care. Police have informed you that you may be charged under New York Penal Code 120.02 for reckless assault of a child.

What exactly does a charge under Penal Code 120.02 mean, and what kind of penalties am I facing?

Attorney's Answer

Under New York Penal Code 120.02, reckless assault of a child is a Class D felony, which means you could face up to 7 years in prison if convicted. The prosecution must prove that you recklessly caused serious physical injury to a child under the age of five — meaning they need to show your conduct created a substantial and unjustifiable risk of harm that you consciously disregarded. A key defense strategy here involves challenging whether the injury qualifies as 'serious physical injury' under Penal Law 10.00(10) and whether your actions truly constituted criminal recklessness rather than an unfortunate accident. You need experienced legal representation immediately, because the difference between a tragic accident and a felony conviction often comes down to how the facts are presented to the grand jury.

This is general information only. Contact us for advice specific to your situation.

What is “Serious Physical Injury?”

For Penal Code 120.02 to apply, the child has to suffer serious physical injury. This means:

• Injury that creates a substantial risk of death
• Loss or serious impairment of a body part or organ
• Serious disfigurement
• Brain damage