25 Sep 23

new york penal code 120 02 reckless assault of a child

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Last Updated on: 28th September 2023, 10:12 pm


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.

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

Minor injuries like bruises or scrapes wouldn’t qualify. The harm has to be significant and lasting.

Penalties and Sentencing

Violating Penal Code 120.02 is a felony. For childcare providers, it is a Class E felony, which carries a maximum sentence of 4 years in prison. For other adults, it is a Class D violent felony, with up to 7 years in prison.

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Sentences can be even longer if the child suffers permanent disability or dies as a result of the assault. Other factors like criminal history can also increase the sentence length.

In addition to jail time, penalties may include fines up to $5,000 or more and a permanent criminal record.


There are a few potential defenses if you’ve been accused of violating Penal Code 120.02:

  • No reckless behavior – Argue that your actions were careful and not reckless given the situation.
  • No serious injury – The child’s injuries were minor and don’t meet the “serious physical injury” threshold.
  • Accident – The child was hurt due to an unintentional accident, not your reckless choices.
  • False allegations – You didn’t injure the child at all and the charges are fabricated.

An experienced criminal defense lawyer can help assess whether any of these defenses may apply in your specific case.

Purpose and Rationale of the Law

Penal Code 120.02 serves an important purpose – protecting vulnerable young children from reckless harm at the hands of adults. Children under 5 are small, fragile, and unable to defend themselves. Their brains are rapidly developing, so injury can have devastating, lifelong effects.

Shaking or throwing babies and toddlers can easily destroy brain cells, damage blood vessels, and cause internal bleeding. This can lead to cerebral palsy, blindness, seizures, and cognitive/developmental problems down the road. Small children have weak neck muscles and heavy heads relative to their bodies, so they are prone to severe head injuries if mishandled.

By imposing strict penalties for recklessly causing brain damage to kids under 5, the law aims to deter such dangerous behavior. It sends a message that children’s safety should be an utmost priority.

However, some argue the law is overly broad or harsh. Accidents do happen, and not every injury is the result of criminal recklessness. There is debate around finding the right balance between protecting children and allowing reasonable parental discipline/discretion.

There is also concern that the law could disproportionately impact lower income families and minorities. More affluent parents may have access to better legal defenses. Some advocate addressing root causes of parental stress/frustration to prevent abuse rather than relying solely on criminal penalties.

But overall, Penal Code 120.02 is seen as an important safeguard for vulnerable children at a key developmental stage. While enforcement and penalties must be fair, the law’s basic purpose is widely supported.

Real World Cases

Here are some real world examples of Penal Code 120.02 cases:


People v. Jones

Linda Jones was a babysitter caring for a 10-month-old boy. Frustrated by his crying, she shook him violently for over a minute, despite knowing the dangers of shaking infants. The boy suffered severe brain bleeding and required emergency surgery. Jones was convicted under Penal Code 120.02 and sentenced to 5 years in prison.

People v. Williams

James Williams grabbed his 3-year-old daughter by the arm and flung her into a wall during an argument with his wife. The girl hit her head and suffered a fractured skull. Williams tried to argue it was just an accident, but prosecutors proved he acted recklessly. He pleaded guilty to reckless assault of a child.

People v. Garcia

Martina Garcia was a teacher at a preschool. She forcefully picked up a misbehaving 2-year-old and slammed him down into his cot. The boy hit his head and got a concussion. Garcia was convicted of reckless assault under Penal Code 120.02. Her lawyer argued she didn’t intend to hurt the boy, but her actions were deemed reckless.

These cases illustrate how Penal Code 120.02 is applied to punish reckless endangerment of young children through shaking, throwing, and slamming.


New York Penal Code 120.02 serves the important purpose of protecting vulnerable young children from reckless behavior by adults that can cause devastating head and brain injuries. While the law aims to deter such conduct and punish those who endanger kids, enforcement and sentencing must be fair and avoid disproportionately impacting minorities and lower income families.

There is certainly debate around finding the right balance in protecting children without overreaching. But overall, Penal Code 120.02 provides a valuable safeguard for our most precious and fragile citizens.