NY Penal Law § 120.00: Assault in the third Degree

NY Penal Law § 120.00: Assault in the third Degree

There are three degrees of the crime of assault in New York’s  Penal Law.  these include assault in the first degree, second degree and third degree. Of the three offenses, assault in the third degree is the least serious. Assault in the third is a class A misdemeanor and carries a possible prison sentence of up to one year in jail.  You will face a change of assault in the third degree under New York Penal Code § 120.00 if:

1. You intentionally physically injure another individual,
2. You injure a third party when you intended to injure another individual,
3. You recklessly injure another individual, or
4. You negligently injure another individual with a deadly weapon or dangerous instrument.

This crime is a class A misdemeanor.

For Example

A man got into a shouting match with his next door neighbor. The man got so angry that, when the argument escalated into a physical fight, he ended up punching his neighbor in the face and in the back.  The neighbor’s injuries required him to seek medical treatment at a hospital. The man who inflicted the injuries could be prosecuted for assault in the third degree.  This charge is validated by the fact that he intentionally injured his neighbor. It is not necessary for the injuries inflicted on the man to be serious.  To be charged under this law, the injuries must be “physical injuries” as defined by the statute.

Offenses that are Related

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

Reckless endangerment second degree: New York Penal Code § 120.20

Possible Defenses

In order to sustain a charge of assault in the third degree, the victim of the assault must have sustained a physical injury. Although it is not necessary for the injury to be severe, there must still be some evidence of an injury that is more than just the victim’s complaints that he or she was hurt. If no physical injury can be demonstrated as defined by the statute, the prosecutor will have a difficult time securing an assault in the third degree conviction against the defendant.

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Also, you are permitted to use reasonable force Under New York law to protect yourself or another person from imminent physical danger in the face of a threat. 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 in the third degree charge.

Legal Scenario: What Would You Do?

Scenario

You got into a heated argument at a bar in Manhattan and shoved another patron, causing them to fall and hit their head on a table. The police arrived and arrested you, charging you with Assault in the Third Degree under NY Penal Law § 120.00.

What am I facing with this third-degree assault charge, and is there any way to avoid a criminal record?

Attorney's Answer

Under NY Penal Law § 120.00, Assault in the Third Degree is a Class A misdemeanor, which means you could face up to one year in jail, three years of probation, and a fine up to $1,000. The prosecution must prove that you intended to cause physical injury and that the other person actually sustained a physical injury as defined under Penal Law § 10.00(9). Depending on your criminal history and the circumstances, we may be able to negotiate an Adjournment in Contemplation of Dismissal (ACD) under CPL § 170.55, which would result in the charge being dismissed and sealed after a period of good behavior. We could also challenge whether the alleged victim's injuries actually meet the statutory definition of 'physical injury,' which requires more than minor or trivial harm.

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

The Sentence

Due to the fact that assault in the third degree is a class A misdemeanor, the maximum possible sentence is up to 1 year in jail. In lieu of serving a sentence behind bars the judge may instead sentence to you to a 3 year probation term.