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NY Penal Law § 120.02: Reckless assault of a child

June 25, 2020 Federal Criminal Attorneys

NY Penal Law § 120.02: Reckless assault of a child

The most egregious crimes in the New York Penal Code that you can get charged with are crimes where children are the victims. The injuries that a child can sustain as a result of an assault can be much more severe than if the victim was an adult with the same injuries. Such injuries can cause long term or even permanent damage, leaving the child disabled for life. Reckless assault of a child is a unique type of assault occurrence against a child that results in brain damage.  You could be prosecuted for reckless assault of a child under New York Penal Code § 120.02 if you are at least 18 years and you assault a minor child who is under 5 years old by shaking, slamming or throwing the child. In addition, the statute stands against you if, as a result of the assault, the child suffers a serious brain injury. The types of brain injury that is required for you to face this charge includes:

 

  • Rotational cranial acceleration and deceleration that is extreme 
  • Intracranial hemorrhaging
  • Subdural hemorrhaging
  • Retinal hemorrhaging
  • Any other serious brain injury that is so severe that the child could die or suffer a protracted physical impairment

 

The kinds of injuries that the child victim would suffer under such treatment by an adult are collectively commonly referred to as shaken baby syndrome.  These injuries are linked to child abuse. That said, to sustain such injuries a child does not necessarily have to have been shaken, but could also have been thrown or slammed.

 

For Example

A man admitted to shaking his girlfriend’s 11-month old daughter because he could not otherwise get her to stop crying. Soon after, the child was found unresponsive, clenching her fists in pain, bruised, unable to hold her head up.  The baby’s eyes were rolled back in her head. Doctors came to the conclusion that the child had suffered a traumatic brain injury. This man could face prosecution for reckless assault of a child, since he shook the child and the child suffered one of the specific types of injuries required in New York Penal Code § 120.02.

 

Offenses that are Related

Luring a child: New York Penal Code § 120.70

Reckless assault of a child by a child day care provider: New York Penal Code § 120.01

Aggravated Assault Upon a Person Less Than Eleven: New York Penal Code § 120.12

 

Possible Defenses

In order to demonstrate that you committed reckless assault against a child, the child must suffer a very specific type of serious physical injury. If the injury the child sustained is less than serious, or if the injury is a type that is not specified in the statute, then the prosecutor will not be capable of proving the case of reckless assault against a child. The prosecutor needs to rely heavily on medical evidence to determine the type and extent of injuries. Likewise, you may also need to rely heavily on medical evidence to demonstrate that the case does not measure up to the statutory requirements.

 

The Sentence

Reckless assault of a child is categorized as  a Class D felony. The maximum possible sentence you could get for this crime is 7 years in prison. Since reckless assault of a child is also classified as a violent felony offense, the judge is obligated to impose a minimum sentence of 2 years in prison. The final determination on the length of your prison sentence will depend on factors such as your prior criminal record.

NY Penal Law § 120.01: Reckless assault of a child by a child day care provider

In the event that a child is assaulted by a child care provider, the charge that the child care provider would face is reckless assault of a child by a child day care provider.  You could be prosecuted under New York Penal Code § 120.01 if you are a child day care provider or an employee of a child day care provider and you recklessly cause serious physical injury to a minor child who is under 11 years old. The term “child day care provider” is defined as any individual, association, corporation, partnership, institution or agency that provides child day care. The term  “Child day care” is defined as consistently caring for a child at a place other than the child’s residence for less than 24 hours a day by someone who is not related to the child.

For Example

A woman operates an in home child day care program. For several weeks, the woman has complained to her employees that one particular 4 year old boy is “bad.” She also complained to the boy’s mother that the boy displayed very bad behavior and was in need of stronger discipline at home. One day, the boy refused to follow some directions the woman was giving him. The woman became angry and slapped him. When he got slapped, the boy fell out of his chair and banged his head on the corner of a table. The boy received a huge gash on his head and required stitches because of the fall. The woman could be facing charges of reckless assault of a child by a child care provider.  This is because she caused the child, who was under the age of 11, a serious physical injury.

Offenses that are Related

Aggravated assault upon a person less than eleven years old: New York Penal Code § 120.12

Luring a child: New York Penal Code § 120.70

Reckless assault of a child: New York Penal Code § 120.02

Possible Defenses

In order to prove that you committed reckless assault of a child by a child day care provider, the child must have suffered a serious physical injury as a result of your actions. If the injury is less than serious, then the prosecutor will not have the ability to sustain a case of reckless assault against a child. The sworn testimony of a medical practitioner will be pivotal in determining the extent and severity of the injuries to the child.

Oftentimes, the severity of an injury to a child does not become apparent to parents or other guardians for hours or days after an assault. As time goes by and the symptoms persist, it may become apparent that there is a serious problem with the child that requires medical attention. When medical assistance is finally sought, it may be unclear by then as to who was likely to be responsible for the child’s injuries, when exactly the injury occurred or where the injury occurred. Parents may be compelled to point the finger at the child care provider.  In such cases, if there is little evidence that that person was responsible, no charge can be brought against them.  At times, scenarios such as this may involve a misidentification.

The Sentence

Reckless assault of a child by a child care provider is categorized as a class E felony. The maximum possible sentence for this crime is 4 years in prison. The actual length of your prison sentence will depend upon several factors, such as your prior criminal record, if you have one.

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