New York Assault in the Third Degree

Assault in the third degree is a class A misdemeanor in New York, carrying maximum penalties of up to 1 year in jail. It is defined under New York Penal Law 120.00. There are a few ways assault in the third degree can be charged:

• Intentionally causing physical injury to another person
• Recklessly causing physical injury to another person
• Causing physical injury with criminal negligence using a deadly weapon or dangerous instrument

Physical injury means impairment of physical condition or substantial pain. It is a broad definition that can cover a wide range of injuries. Even minor injuries like bruising could potentially qualify if they cause substantial pain.

Assault in the third degree is usually charged in cases of minor assaults and fights. More serious assaults involving serious physical injury will be charged as assault in the second degree or first degree. Cases of domestic violence between family members may also sometimes lead to third degree assault charges.

Elements of Assault in the Third Degree

There are two main elements prosecutors need to prove for a conviction of assault in the third degree in New York:

• The defendant caused physical injury to the victim
• The defendant acted intentionally, recklessly, or with criminal negligence

The physical injury element means the victim must have suffered some form of bodily harm. Minor injuries are sufficient to meet this element, but there must be some physical impairment or substantial pain caused.

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Legal Scenario: What Would You Do?

Scenario

After an argument at a bar in Manhattan, you shoved another patron who then fell and hit his head on the counter, sustaining a cut that required stitches. The police arrived and arrested you, charging you with Assault in the Third Degree under New York Penal Law 120.00.

Can I really face jail time for a single shove during a bar argument, and what are my options for fighting this charge?

Attorney's Answer

Under New York Penal Law § 120.00, Assault in the Third Degree is a Class A misdemeanor that carries up to one year in jail, three years of probation, and a fine up to $1,000. The prosecution must prove that you intentionally or recklessly caused 'physical injury,' which New York Penal Law § 10.00(9) defines as impairment of physical condition or substantial pain — the cut requiring stitches likely meets that threshold. However, several defenses may apply, including justification under Penal Law § 35.15 if the other person was the initial aggressor, or we may argue the injury did not rise to the statutory definition of physical injury. In many cases involving first-time offenders and minor injuries, we can negotiate an adjournment in contemplation of dismissal (ACD) or a reduction to a non-criminal violation such as Harassment in the Second Degree under Penal Law § 240.26, which would avoid a criminal record entirely.

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

The mental state element requires the assault was intentional, reckless, or criminally negligent. This means the defendant either meant to cause injury, consciously disregarded the risk of injury, or failed to perceive a risk of injury that an average person would have been aware of.

Defenses to Third Degree Assault