Three seconds of surveillance footage from the Forest Hills 71st Avenue subway platform shows my client’s open palm making contact with the complainant’s shoulder, a push lasting maybe half a second, no closed fist, no follow-through, yet Queens prosecutors charged assault in the third degree under NY Penal Law § 120.00, a Class A misdemeanor carrying up to 364 days on Rikers Island, because in New York, unlike 48 other states that distinguish battery from assault, any intentional physical contact causing any physical injury, even transient pain that leaves no mark, satisfies the assault statute. The complainant told responding officers his shoulder hurt. No medical treatment, no bruising photographed during the domestic incident report, just claimed pain. That’s enough for assault in New York.

Battery doesn’t exist in New York Penal Law. People say battery when they mean assault, lawyers from other states file motions referencing battery charges that don’t exist here, defendants google “battery defense NY” finding nothing useful because NY Penal Law Article 120 consolidates everything – hitting, pushing, threatening, attempting – under assault statutes. In People v. Chiddick, 8 N.Y.3d 445 (2007), the Court of Appeals held that “physical injury” requires impairment of physical condition or substantial pain, but prosecutors ignore “substantial,” and judges, especially in Queens where Judge Kenneth Holder in AP8 treats every touching as potential assault, let marginal cases proceed to trial.

Todd Spodek here – yesterday in Manhattan Criminal Court, Part F, watching ADA Martinez argue that my client’s defensive push after being cornered in a Washington Heights bodega constituted assault second under § 120.05 because the complainant fell, scraped his knee, needed a band-aid. The surveillance shows complainant advancing aggressively, my client backing up until hitting the chip display, then one push. Clear self-defense under Penal Law § 35.15, reasonable force to defend against imminent unlawful force. But here’s what makes this practice, not theory: Judge Melissa Crane, who usually recognizes self-defense, was just replaced by Acting Judge Robert Rosenthal, fresh from civil court, who treats every physical contact as presumptive assault, demanding trials on cases Crane would dismiss. Same facts, different judge, opposite outcome.

The 364-Day Sentence That Destroys Immigration Status

A year in jail sounds bad.

But 364 days versus 365 determines whether green card holders face deportation. NY amended the misdemeanor sentencing in 2021, capping Class A misdemeanors at 364 days specifically to avoid the federal immigration consequence triggered at one year. Prosecutors know this, use it as leverage, offering 365 days knowing it triggers removal proceedings, then “generously” reducing to 364 if you waive appeal rights, accept probation terms that set you up for violation.

In Bronx Criminal Court, Judge Bahaati Pitt openly discusses immigration consequences during plea colloquies, warning defendants about the 365-day threshold. In Queens, judges pretend immigration doesn’t exist, focus only on criminal penalties, leave defendants discovering deportation when ICE detains them at Rikers during their sentence.

Desk Appearance Tickets Hide Felony Investigations

You shove someone at Citi Field after they throw beer on you, security calls NYPD, you get a Desk Appearance Ticket for assault third degree, think it’s minor because they released you.

Meanwhile, detectives are pulling stadium surveillance, interviewing witnesses, building an assault second degree case under § 120.05 if the person claims injury, or assault third under § 120.00 if multiple people were involved making it gang assault under § 120.06. The DAT gets you to court for misdemeanor arraignment while the felony investigation continues. You plead to misdemeanor thinking you won, then get arrested six months later on felony charges for the same incident, no double jeopardy because you pled to different charges.

This week in Brooklyn, client arrested on felony assault charges eight months after taking ACD on misdemeanor assault from same incident. DA’s office claimed “new evidence” – really just medical records showing bruising they had during initial prosecution but didn’t review.

Hospital Records Create Assault Cases From Nothing

NYC Health + Hospitals emergency rooms must report suspected assaults to NYPD under Public Health Law § 2805-j. Someone goes to Elmhurst Hospital claiming you pushed them last week, even without visible injury, hospital calls police, domestic incident report gets filed, you’re arrested days later based solely on medical record stating “patient reports being pushed by romantic partner.”

The medical record becomes evidence of injury, even when it documents no objective findings, because prosecutors argue the hospital visit itself demonstrates substantial pain. In People v. Stewart, 18 Misc. 3d 1142(A) (Crim. Ct. Queens County 2008), court held that seeking medical treatment can evidence substantial pain even absent objective injury.

Three weeks ago, client arrested because ex-girlfriend went to Jamaica Hospital claiming headache from argument two weeks prior. No bruising, normal CT scan, discharged with Tylenol. Arrested for assault third, prosecutor seeking 90 days jail based entirely on hospital record showing “post-altercation headache.”

Orders of Protection Manufacture Violations

Every assault arraignment in NYC courts, judges issue temporary orders of protection under CPL § 530.12, standard language prohibiting contact with complainant. Full stay-away means no contact directly or through third parties. You share children? Too bad, no exception without family court order.

Your cousin texts the complainant “can you two work this out?” That’s attempted contact through third party, violates order, becomes criminal contempt under Penal Law § 215.50, new misdemeanor charge. Complainant texts you first? Doesn’t matter, responding violates order. Meeting accidentally at Key Food? You must leave immediately or face arrest.

Staten Island prosecutors charge order violations aggressively, turning every technical violation into new prosecution. Manhattan exercises discretion if contact was consensual. Brooklyn depends which ADA – some dismiss consensual contact violations, others prosecute everything.

When Mutual Combat Becomes Sole Prosecution

Bar fight on Steinway Street in Astoria, both parties throwing punches, both injured, security video shows mutual combat. NYPD arrests whoever lost the fight, charging assault while treating the winner as victim. Prosecutors refuse to charge both parties, claiming it complicates prosecution, so whoever called 911 first becomes complainant, other becomes defendant.

In People v. Freeland, 36 N.Y.3d 251 (2020), Court of Appeals recognized that mutual combatants can’t claim self-defense unless they withdraw from fight, communicate withdrawal. But street fights don’t have referee timeouts for formal withdrawal announcements.

Last month, both parties in Williamsburg bar fight had broken noses, both went to hospital, both wanted to press charges. Brooklyn DA only prosecuted my client because other guy’s injury photographed worse, making him more sympathetic victim. Same conduct, same intent, but prosecution based on who bled more.

The Rikers Transportation Hours That Don’t Count

364 days on Rikers doesn’t mean 364 days.

You’re sentenced at 9 AM in Queens Criminal Court on Sutphin Boulevard. Transportation to Rikers doesn’t leave until 6 PM. Those nine hours don’t count as time served. Release processing takes 8-14 hours, also doesn’t count. Weekend arrests mean 48-72 hours before seeing judge, might not get credit depending on when paperwork was processed.

The actual horror: Rikers inmates with assault charges get classified as violent, housed in maximum security units even for misdemeanors. North Infirmary Command, where violent misdemeanors go, had 19 slashings last month. You’re doing 90 days for shoving someone, housed with people doing years for attempted murder.

Call Now – The 180.80 Clock Runs Out Thursday

212-300-5196

If you were arrested on assault charges and released on DAT or bail, CPL § 180.80 requires prosecution to obtain grand jury indictment or prosecutor’s information within 120 hours of arraignment for felonies, 90 days for misdemeanors. Miss those deadlines, case must be dismissed.