25 Sep 23

new york penal code 120 05 assault in the second degree

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Last Updated on: 28th September 2023, 10:18 pm


New York Penal Code 120.05 – Assault in the Second Degree

Assault in the second degree is a serious felony charge in New York, carrying up to 7 years in prison. Let’s take an in-depth look at this law, what it covers, defenses, and things to know if you’ve been charged.

What Does NY Penal Code 120.05 Prohibit?

There are 7 main ways assault in the second degree can be charged under NY law:

  1. Intentionally causing serious physical injury to another person with a deadly weapon or dangerous instrument
  2. Intentionally causing physical injury to someone 65 or older when the defendant is at least 10 years younger
  3. Recklessly causing serious physical injury to someone under 11 years old
  4. Assaulting someone with intent to cause serious physical injury, and causing injury to any person
  5. Recklessly engaging in conduct creating a grave risk of death, and causing serious physical injury to another person
  6. While confined in a correctional facility, intentionally causing physical injury to an employee of the facility
  7. While being arrested, intentionally causing physical injury to the police officer, peace officer, or process server

As you can see, assault in the second degree covers a range of scenarios involving intentionally or recklessly causing physical harm to others. The victims can include children, the elderly, correctional facility employees, and police officers. Let’s break down some of the key terms and elements.

What is “Serious Physical Injury?”

Many charges for assault in the second degree require causing “serious physical injury.” Under NY Penal Code Section 10.00, this means physical injury that creates a substantial risk of death, causes serious disfigurement, loss or impairment of a body part or organ, or extended loss of consciousness.

If the injury does not meet this high standard, the assault charge may be lessened to third degree assault or other offenses. A skilled criminal defense lawyer can argue the seriousness of injury in court.

What is a “Deadly Weapon” or “Dangerous Instrument?”

Assault charges can be enhanced if committed with a deadly weapon or dangerous instrument. These include things like:

  • Firearms
  • Knives, swords, box cutters
  • Metal knuckles
  • Bats, pipes, bricks
  • Poisons, acids, explosives
  • Vehicles when intentionally used against a person

Even common everyday objects can be considered dangerous instruments depending on how they are used in an assault. This includes things like belts, pens, rocks, furniture, etc.

Penalties for Assault 2 in New York

Assault in the second degree is a Class D felony, punishable by up to 7 years in state prison. Other possible sentences include:

  • 3.5-7 years in prison
  • 5 years probation
  • Fines up to $5,000
  • Restitution to victims
  • Mandatory surcharges and fees
  • Permanent criminal record

Sentences for assault 2 tend to be harsher if the victim is a child, elderly person, or police officer/corrections officer. Domestic violence and hate crimes can also increase sentences. A skilled NY assault lawyer can argue for mitigating factors to reduce penalties.

Defenses to Assault 2 Charges

There are several legal defenses that could potentially beat an assault in the second degree charge. A few examples include:

Lack of Intent

For assault charges involving intentional conduct, the prosecution must prove you intended to cause physical injury. If the assault was an accident or act of self-defense, this negates intent.

No Serious Physical Injury

As mentioned earlier, proving the injury meets the “serious physical injury” standard is required for certain assault 2 charges. The defense can dispute the severity of injury.

Mistaken Identity

Eyewitness misidentification is a common cause of wrongful convictions. If you were mistakenly identified as the perpetrator, this provides a defense.


If you acted in self-defense against an attacker, this may justify an assault and provide a complete defense. There are specific requirements for claiming self-defense under NY law.

An experienced NY criminal lawyer can evaluate the evidence against you and decide what defenses to pursue. The earlier in the process you engage a lawyer, the more options you will have.

Pre-Trial Options in Assault 2 Cases

After an arrest for assault in the second degree, the next step is your arraignment. At this first court appearance, you can plead guilty, not guilty, or no contest. Pleading not guilty preserves your rights and defenses going forward.

Your lawyer may also file pre-trial motions to try to get evidence suppressed or charges dismissed. Some options include:

  • Motion to Suppress – Argue evidence was obtained illegally in violation of your rights
  • Motion to Dismiss – Argue flaws in the charges or insufficient evidence
  • Extreme Hardship Motion – Argue penalties would cause extreme hardship for dependents
  • Motion for Bill of Particulars – Require prosecution to clarify vague charges

Making a successful motion can get charges reduced or dismissed before trial. Your assault attorney will know which motions to file in your case.

Plea Bargains in Assault 2 Cases

Many assault in the second degree cases end in plea bargains rather than going to trial. This involves pleading guilty in exchange for a lesser charge or reduced sentence. Typical plea bargains include:

  • Plead to a misdemeanor assault in exchange for probation
  • Plead to attempted assault in exchange for reduced jail time
  • Plead to third degree assault to avoid a felony record

An experienced NY assault lawyer can negotiate with the prosecution for the best possible plea deal option for your situation.

Going to Trial for Assault 2 Charges

If no pre-trial motions succeed and no acceptable plea bargain is offered, the next step is taking the case to trial. Your assault attorney will thoroughly prepare by:

  • Filing motions to exclude prejudicial evidence
  • Interviewing witnesses
  • Consulting expert witnesses as needed
  • Researching and preparing arguments
  • Developing a trial strategy focused on reasonable doubt

During trial, your lawyer will cross-examine witnesses, object to improper prosecution tactics, and present persuasive arguments to the jury. An experienced trial lawyer can make the difference between a conviction and an acquittal.

Potential Trial Defenses

Some of the strongest defenses during an assault trial include:

  • Self-Defense – Argue your actions were legally justified against an aggressor
  • Mistaken Identity – Show misidentification by witnesses or victims
  • No Intent – Argue the assault was an accident, not intentional
  • No Serious Injury – Dispute the severity of injury to the victim

Raising reasonable doubt about any one element of the assault charge could lead to a not guilty verdict. An experienced NY criminal lawyer will know how to craft the strongest defense.

What Happens if Convicted of Assault 2?

If convicted at trial of assault in the second degree, you face up to 7 years in New York State Prison. Other consequences include:

  • Permanent felony criminal record
  • Difficulty finding future employment
  • Bars from certain professional licenses
  • Loss of voting rights; inability to own a firearm
  • Deportation if not a U.S. citizen
  • Lifelong social stigma

Your assault attorney may file post-trial motions to try to get a conviction overturned. If these fail, you can file an appeal arguing mistakes of law were made during the trial process.

Finding the Best Assault Lawyer for Your Case

If you or a loved one has been arrested for assault in the second degree, it is critical to retain an experienced NY assault attorney immediately. Look for a lawyer who:

  • Focuses specifically on NY assault defense with deep knowledge of Penal Code 120.05
  • Has a proven track record of positive case results
  • Will aggressively defend you and advocate on your behalf
  • Makes you feel comfortable and provides responsive, compassionate counsel

Don’t leave your future in the hands of just any lawyer. Interview assault attorneys thoroughly and find the best legal fighter for your case.

Assault charges can carry life-changing penalties, but an experienced lawyer can help you avoid the worst outcomes. With sound legal advice and skilled representation, you can move forward with confidence knowing your rights are protected.