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

June 25, 2020 Federal Criminal Attorneys

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.

 

Sentence

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.

 

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