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:

DEFENSE TEAM SPOTLIGHT

Todd Spodek

Lead Attorney & Founder

Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.

NY Bar Admitted Multi-State Licensed Federal Courts

Meet the Full Team

Legal Scenario: What Would You Do?

Scenario

After a heated argument at a bar, you shoved another patron who then fell and broke his collarbone. The police arrested you and you've now been charged with Assault in the Second Degree under NY Penal Code § 120.05.

What am I actually facing with this second-degree assault charge, and is there any way to get it reduced?

Attorney's Answer

Assault in the Second Degree under Penal Code § 120.05 is a Class D violent felony carrying up to 7 years in state prison, with a mandatory minimum of 2 years if convicted. A key element the prosecution must prove is that you intentionally caused 'serious physical injury' — a broken collarbone likely meets that threshold under NY Penal Law § 10.00(10), which defines serious physical injury as injury creating a substantial risk of death or causing protracted impairment of health. However, depending on the circumstances, we may be able to argue for a reduction to Assault in the Third Degree under § 120.00, a misdemeanor, particularly if we can show the injury was not intentional but reckless, or raise a justification defense under Penal Law § 35.15 if the other person was the initial aggressor.

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

• 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