NY Penal Law § 120.08: Assault on a peace officer, police officer, fireman or emergency medical services professional

NY Penal Law § 120.08: Assault on a peace officer, police officer, fireman or emergency medical services professional

Although any type of assault is a serious offence, law enforcement considers assaulting a police officer as a particularly egregious one.  You will have committed this crime under New York Penal Code § 120.08 if, with intent to prevent a peace officer, police officer, fireman or emergency medical services professional from performing his or her lawful duty, you cause that individual serious physical injury. The term “serious physical injury” is an injury that imposes a substantial risk of death, causes death, causes protracted disfigurement or impairment of health, or causes loss of a bodily organ. Assault on a professional in one of these job descriptions is a class C felony.

For Example

A man was sitting inside of his legally parked SUV, when an unmarked police cruiser pulled up to the driver’s side window. The police officer leaned across and asked the man what he was doing. The man replied to the police officer with a short, curt answer. Unsatisfied with the man’s answer, the officer got out of his car and approached the SUV.  The officer opened the door and ordered the man to exit the SUV.   The man did not comply.  Instead, he shifted into drive, pressed his foot down hard on the gas pedal.  He hit the police officer. As a result, the officer suffered severe physical injuries. The man probably would not be prosecuted for assault on a peace officer under New York Penal Code § 120.08 due to the fact that the stop was not lawful. It can be argued that the police officer did not have probable cause to “stop” the car and order the man to get out of it.

Offenses that are Related

Aggravated assault upon a police officer or a peace officer: New York Penal Code § 120.11

Assault in the second degree: New York Penal Code § 120.05

Possible Defenses

To be properly charged and convicted of assault on a peace officer, the statute requires that the injury inflicted be a serious physical injury. If the injury sustained by the victim is not as serious as the statute requires, then you have a valid defense against an assault on a peace officer charge.

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A possible alternative defense is the incident occurred at a timeframe when the officer was not in the midst of performing his or her lawful duties. For example if, while the officer is off duty, you get into a physical fight with him at a bar over a game of darts, you cannot be prosecuted for assault on a peace officer. Nonetheless,  you may face other assault charges.

Legal Scenario: What Would You Do?

Scenario

During a heated argument at a traffic stop, you shoved a police officer who was attempting to handcuff you, causing the officer to fall and suffer a fractured wrist. You were arrested and told you are being charged under NY Penal Law § 120.08 for assault on a police officer.

What am I facing if convicted of assaulting a police officer under Penal Law § 120.08, and is there any way to fight this charge?

Attorney's Answer

Assault on a police officer under NY Penal Law § 120.08 is a Class C felony, carrying a potential sentence of up to 15 years in state prison. The prosecution must prove that you intended to prevent the officer from performing a lawful duty and that you caused serious physical injury while the officer was acting in an official capacity. A strong defense may challenge whether the officer was engaged in a lawful duty at the time, whether the injury meets the statutory threshold of 'serious physical injury,' or whether your actions were a justified response to excessive force. Given the severity of these charges, it is critical to retain experienced counsel immediately to preserve evidence and explore every available defense strategy.

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

The Sentence

Assault on a peace officer is a class C felony. The maximum sentence you could possibly face for this offense is 15 years in prison and a $5,000 file. Since assault on a peace officer is also classified as a violent felony offense, the judge is obligated to impose a minimum sentence of 3 1/2 years in prison even if you have no prior convictions. If you do have one or more prior felony convictions, the minimum sentence will be longer than that.