NY Penal Law § 120.05: Assault in the second Degree

NY Penal Law § 120.05: Assault in the second Degree

Assault in the second degree is of one of several assault offenses listed in the New York penal code. There are seven different circumstances under which you could find yourself up against such a charge.  You could be prosecuted under New York Penal Code § 120.05 for assault in the second degree if you:

• Assault another Individual with the intent to cause serious injury to that person and you do,  in fact, inflict serious physical injury to that individual or to a third person.
• Assault another individual using a deadly weapon or dangerous instrument, intending to injure the person and, in fact, injuring that person or a third party.
• Assault an official, such as a peace officer or train operator or conductor, in order to prevent that individual from performing his or her duties.
• Recklessly cause serious physical injury to another individual with a deadly weapon or a dangerous instrument.
• Intentionally cause another individual to become unconsciousness or physically impaired by administering a drug to that individual without his or her consent.
• Injure another individual while you were in the course of committing a felony offense.
• Are at least 18 years of age, and you injure a child who is younger than 11 years old, and you do so intentionally or recklessly.

This crime is a class D felony.

Some Examples

In one case, a man uses a pocket knife to inflict a 16″ wound in another man’s abdomen. In another case a man punches a woman in the face, causing her to fall backwards and bang her head on the sidewalk. She suffers serious injuries to her head and ends up on life support. In both cases, the men could face prosecution for assault in the second degree on the basis of  having the intent to cause serious physical injury to another individual and in fact causing serious injury.

Offenses that are Related

Menacing in the second degree: New York Penal Code § 120.14

Reckless endangerment in the second degree: New York Penal Code § 120.20

Possible Defenses

An assault in the second degree charge can be based on you inflicting serious injuries on the victim. The definition of  “serious physical injury” is clearly delineated under New York Penal Code § 10.00(10). If you can demonstrate that the victim’s injuries were actually not that serious, then you may have a valid defense against assault in the second degree charges.

New York criminal law has a “justification” statute that allows you to use physical force against another individual to protect yourself from imminent harm. If you can demonstrate that, on the basis of the facts of the case, you had good reason to believe that you were in imminent physical danger, then you may be able to use this as a valid defense against an assault charge.

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Sentence

Assault in the second degree is categorized as a class D felony. The maximum possible sentence for this crime is 7 years in prison. Since assault in the second degree is also classified as a violent felony offense, the judge is obligated to impose at least a sentence of 2 years in prison on you. For an assault in the second degree conviction, in addition to being sentenced to a minimum of 2 years in prison, you may also be ordered to pay a fine of up to $5,000.

Legal Scenario: What Would You Do?

Scenario

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

What exactly does a second-degree assault charge mean for me, and what kind of penalties am I facing?

Attorney's Answer

Assault in the Second Degree under NY Penal Law § 120.05 is a class D violent felony in New York, which carries a potential sentence of up to seven years in state prison, even for a first-time offender. The prosecution must prove that you intentionally caused serious physical injury to another person, which in this case would include the broken wrist. However, there are several possible defenses we can explore, including justification under NY Penal Law § 35.15 if you were acting in self-defense, or arguing that the injury does not meet the statutory definition of 'serious physical injury' under § 10.00(10). An experienced attorney can also negotiate for a reduction to Assault in the Third Degree, a class A misdemeanor, which would significantly reduce your exposure.

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

Additionally, as part of the criminal process, the prosecutor may request and the judge may grant an Order of Protection in favor of the victim. Simply stated, an Order of Protection (formerly referred to as a Restraining Order) is a court order requiring you to stay away from another person.