NY Penal Law § 120.07: Gang assault in the first degree

NY Penal Law § 120.07: Gang assault in the first degree

Gang assault is a form of assault that involves at least 3 people collaborating in the assault of one or more victims. There are two degrees of gang assault. They are gang assault in the second degree and gang assault in the first degree. The more serious offense is gang assault in the first degree.  You will face this charge under New York Penal Code § 120.07 if you are involved in a gang assault, your intent was to inflict serious physical injury, and as a result of the assault, the victim sustained serious physical injuries. This crime is a class B felony. 

For the purpose of this statue, physical injury is defined as an “injury” that causes an impairment of physical condition or substantial pain, while “serious physical injury” is one that is so serious that it imposes a substantial risk of death, causes death, causes protracted or permanent disfigurement or impairment of health, or causes loss of a bodily organ. The main difference between a second degree gang assault charge and a first degree gang assault charge is the intent part. For a second degree charge, your intent would have been to cause physical injury.  On the other hand, for a first degree charge you intent would have been to cause serious physical injury.

For Example

A man and 2 friends jumped a woman who was by herself.  They punched her a few times, grabbed her purse and ran off. The woman went to the emergency room to seek medical attention, but was not admitted to the hospital. She sustained a few minor bruises and a headache. The attending physician gave her an over-the-counter pain killer and discharged her. Later, the man was arrested and charged with gang assault in the first degree. The man’s attorney objected to the charge, arguing that the woman clearly did not suffer a serious physical injury. In this situation, the prosecutor would have a hard time sustaining a first degree gang assault charge based on the fact that the woman suffered only minor injuries that did not require hospitalization or treatment other than an over-the-counter pain medication.

Offenses that are Related

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

Gang assault in the second degree: New York Penal Code § 120.06

Possible Defenses

The lack of severity of the victim’s injuries may provide a plausible defense to a charge of gang assault in the first degree. 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 closely examine any medical evidence to determine whether or not the victim suffered from a serious injury. Factors which courts may take into account include:

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Legal Scenario: What Would You Do?

Scenario

Your 19-year-old son was at a party where a fight broke out, and three of his friends severely beat another guest, leaving the victim with a fractured skull and broken jaw. Police arrested everyone involved, including your son, and charged them all with gang assault in the first degree under NY Penal Law § 120.07.

My son says he didn't throw any punches — can he still be convicted of gang assault in the first degree?

Attorney's Answer

Under NY Penal Law § 120.07, gang assault in the first degree requires that a person, aided by two or more other persons actually present, causes serious physical injury to another person. Even if your son didn't personally strike the victim, prosecutors may argue he acted in concert with the group under New York's accomplice liability statute, Penal Law § 20.00, which holds that a person is criminally liable for the conduct of another when he intentionally aids or encourages the commission of the offense. This is a class B violent felony carrying a mandatory minimum of 5 years and up to 25 years in state prison. A strong defense would focus on establishing that your son had no intent to participate in or facilitate the assault, and we would scrutinize surveillance footage, witness statements, and physical evidence to demonstrate he was merely present rather than an active participant.

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

• Whether or not the victim lost consciousness
• Whether or not the victim suffered a permanent scar
• Whether or not the victim experienced a great deal of pain
• Whether any of the victim’s vital organs were damaged
• Whether or not the victim had to undergo surgery

The Sentence

Due to the fact that gang assault in the first degree is a class B felony, the maximum possible sentence you can face is 25 years in prison. Since it is also classified as a violent felony, the judge is obligated to impose a minimum sentence of 5 years. The final determination on the length of your prison sentence will depend on factors such as your prior criminal record. On top of that, the judge may order you to pay a fine of as much as $5,000.