NY Penal Law § 120.06: Gang assault in the second degree

NY Penal Law § 120.06: Gang assault in the second degree

The criminal charge you will face if you intentionally or recklessly inflict physical injury to someone else is assault. If the assault is perpetrated against an individual by at least 3 people, then the offense is not simply assault.  In such a situation, the offense gets raised to gang assault. While the title of this crime makes it appear as if the assault must be committed by members of an identifiable street gang, this is not the reality. For purposes of this assault statute, a “gang” is simply 3 or more people assaulting an individual.  You will face a charge of gang assault in the second degree under New York Penal Code § 120.06 if you assault another person and you are aided in the assault by at least 2 other people. Your intent must have been to inflict physical injury and, as a result of the assault, the victim must have actually sustained serious physical injury. This is a class C felony offense.

An Example

A man and 4 friends approach 2 other individuals and start to yell at them. Then the man telsl his friends to physically attack the 2 opposing individuals. They do so while the man watches the altercation take place. As a result, the 2 people who got attacked suffered serious physical injuries. Even though the man did not himself personally physically attack the 2 victims, he ordered the other 4 people to do so. For this reason, he could face prosecution for gang assault in the second degree under New York Penal Code § 120.06.

Offenses that are Related

Assault in the first degree: New York Penal Code § 120.10

Gang assault in the first degree: New York Penal Code § 120.07

Possible Defenses

A gang assault in the second degree charge must be validated on the basis of the defendant’s intent to cause physical injury and on the victim having sustained serious physical injury. If either of these factors cannot be demonstrated, you have a valid defense against the charge. The court will not classify an injury as “serious” unless the injury is life-threatening and/or permanently disfiguring. Even something so seemingly egregious as multiple stab wounds may not necessarily cause serious physical injuries for the purposes of the charge.

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

Sentence

Legal Scenario: What Would You Do?

Scenario

You were present when a group of four friends got into a heated confrontation outside a bar, and one of them seriously injured another patron. Police arrested everyone in the group, including you, even though you never threw a punch or intended for anyone to get hurt.

Can I really be charged with gang assault in the second degree under NY Penal Law § 120.06 just for being part of the group, even if I didn't physically assault anyone?

Attorney's Answer

Under NY Penal Law § 120.06, gang assault in the second degree requires that a person, aided by two or more other persons actually present, intentionally causes serious physical injury to another person — it is a class C violent felony carrying up to 15 years in prison. Prosecutors must prove you actively participated in the assault, not merely that you were standing nearby when it occurred. However, the law's 'aided by' language can be broadly interpreted, and if evidence suggests you encouraged, facilitated, or acted in concert with those who inflicted the injury, you could face charges even without landing a blow yourself. An experienced criminal defense attorney can challenge the prosecution's theory of accessorial liability and argue that mere presence does not constitute the intentional conduct required under the statute.

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

Since gang assault in the second degree is a class C felony, the maximum possible sentence you could face is 15 years in prison.  On top of that, you could be ordered to pay a fine of up to $5,000. Due to the fact that gang assault in the second degree is also classified as a violent felony offense, the judge is obligated to impose a minimum sentence of 2 years in prison on you. The final determination on the length of your prison sentence will depend on factors such as your prior criminal record.