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What Is Assault?

If you or a loved one has been charged with assault, one of the most important things is understanding what assault is and what consequences it could entail. Assault is still commonly referred to by the general public and even the laws of other states as “assault and battery.” If an individual has caused physical injury to another person, that person may have committed an assault under New York criminal law. How severe the injury was and the presence of aggravating factors can increase the severity of any assault charges and increase the possible penalties.

What Are the Assault Tiers?

Like many other statutes, assault is tiered into first, second, and third degree offenses. First degree assault is the most serious of the three and it, as well as second degree assault, is a felony. Third degree assault is a misdemeanor, but it can still result in as much as one year in jail.

Third Degree Assault

Though third degree assault is a misdemeanor and the lowest tiered assault charge, it can still have serious consequences. It is also the most commonly committed of the three levels of assault. Typically, for a person to commit third degree assault, that person must have intended to cause injury to another person and actually caused injury. However, intent is not always necessary. A person can commit third degree assault if the injury is caused by criminal negligence or by recklessness and the injured victim may not necessarily be the intended victim. In all cases, the injury does not need to be severe to justify a third degree assault charge.
In New York, third degree assault is a misdemeanor, which means there is a better possibility of alternative sentencing that avoids jail time. A judge may have the option of requiring probation, payment of a fine, the attendance of anger management classes, and/or community service. Tougher sentences may also be issued at a judge’s discretion due to the facts of the case, prior charges, etc.

Second Degree Assault

In New York criminal law, second degree assault is considered a Class D Violent Felony. The types of offenses that can lead to a second degree assault charge are far broader than those of a third degree assault, though there are some similarities. Second degree assault can occur where a serious physical injury is caused by an individual’s intentional acts, reckless acts, or criminal negligence. The difference between second and third degree assault in these scenarios is the severity of the victim’s injuries. Even if the victim’s injuries are no more severe, the use of a deadly weapon can also make an otherwise moderate injury qualify for a second degree assault charge.
The criminal law statute also provides other circumstances that could earn a second degree assault charge. These include releasing or failing to control an animal to try to prevent the performance of a lawful duty, such as police officers making an arrest or firefighters attempting to put out a fire. Second degree assault can also apply, even without the involvement of an animal if the person injures certain individuals, such as train operators, bus operators, police officers, or nurses, attempting to complete their assigned duty. Second degree assault also applies when the victim was given a drug or substance without the victim’s consent and not for medical purposes with the intent to cause physical impairment, physical injury, unconsciousness, or stupor. An assault causing personal injury committed during the commission of a felony or while being held in a correctional facility also qualifies as a second degree assault.
The age of the victim can also affect the severity of the assault charge. If someone 18 years of age or older seriously injures someone under the age of 11, even though the intent was to cause physical injury, this qualifies as second degree assault under New York criminal law. Likewise, intentionally causing physical injury to a victim under the age of seven also qualifies. If the individual is at least ten years younger than a victim who is 65-years-old or older, a physical injury can qualify for second degree assault as well.
The penalty for second degree assault is a minimum of two years in jail to a maximum of seven years in jail. As with third degree assault, there is the possibility that a judge may impose an alternative sentence that results in less, or possibly no, jail time. The severity of a sentence will be affected by the circumstances of the case and any prior convictions.

First Degree Assault

First degree assault is the most serious of the assault crimes. These crimes require the victim to suffer more than just “physical injury.” These crimes require a serious physical injury, loss of a body part, or a severe and permanent disfigurement.
The presence of a deadly weapon or an assault committed in the commission of a felony automatically moves an incident up a tier. Similar to how the use of a deadly weapon increases a physical injury from third to second degree assault, when a victim is seriously injured by a deadly weapon, a second degree assault becomes a first degree assault. Similarly, a serious physical injury caused during the commission of a felony is a first degree assault.
Regardless of of the presence of a deadly weapon, if a person intentionally disfigures a victim permanently or causes the loss of a limb, organ or other body part, the person can be charged with first degree assault. Reckless conduct that carries a grave risk of death can also lead to a charge of first degree assault; for example, firing a gun into a crowd could constitute first degree assault reckless conduct.
Courts do not take first degree assault lightly, which is why these charges carry a prison term of a minimum of three years and up to 25 years.

What do the Terms Mean?

As with many laws, the laws governing assault include a number of specifically defined terms. These terms are often the difference between one assault tier and another. It is important to understand what these terms mean to have an understanding why someone has received a specific charge over another.

Physical Injury and Serious Physical Injury

One major difference between the tiers for assault is the severity of the injury to the victim. New York law defines a physical injury as “impairment of physical condition or substantial pain.” A serious physical injury is a step further; this is not mere pain but instead a risk of death or actual death, long-term disfigurement, poor health, or the loss or impairment of an organ or other body part. Typically, but not always, a physical injury is temporary, but a serious physical injury has long-lasting or even permanent consequences.

Intentional, Reckless, Criminally Negligent

Though the intentional infliction of an injury is an obvious act of assault, recklessness and criminal negligence are not as blatant. These are the incidents when an individual wants an injury to occur and causes an injury to someone. Recklessness occurs when someone is aware that a particular action has a substantial and unjustified risk but proceeds with the action anyway, disregarding that risk. Though being intoxicated may be a defense to intentional acts, it is not a defense to reckless assault. Criminal negligence occurs when an individual fails to act in a circumstance described by statute in such a way that this is a “gross deviation” from the standard of care a reasonable person should exert in a given situation.

Deadly Weapon and Dangerous Instrument

Deadly weapons are those designed to be a weapon with the potential to do serious harm to an individual. These may be a firearm or specific form of knife or even metal or plastic knuckles. A dangerous instrument is an object that is being used as a weapon but is not necessarily a weapon in common use. This may be any number of objects, including a chair or even a car.

Intended Victim and Actual Victim

Intended and actual victims may be the same individual, but that does not need to be the case. The intended victim is the person who is supposed to be injured by an individual’s assault. The actual victim is the person who actually suffers injury. The actual victim does not need to be the intended victim, and any intent to harm the intended victim will be considered part of the charge for an injury on the actual victim. For instance, if Joe wants to hurt Steve, but instead hurts Paul, Joe cannot claim he did not intend to do injury. The court will still consider this act intentional, as the intent to harm someone, even if not Paul, was the cause for Joe’s act.

What is a Gang Assault?

There are other variations on assault, including “gang assault.” Though the name may bring to mind organized gang violence, a person do not need to be the member of any gang to be charged with a “gang assault.” Gang assaults occur when a person is helped by two or more people to commit an assault.
Gang assault has two tiers. Second degree gang assault occurs when a person intends to cause injury and when aided by at least two other people causes serious physical injury to another. This is a class C Violent Felony, with a minimum jail sentence of 3.5 years and a maximum sentence of 15 years in jail. First degree gang assault occurs when there is an intent to cause serious physical injury with the assistance of two or more other people, and serious physical injury occurs. This Class B Violent Felony can earn someone 5 to 25 years in jail.

What is an Attempted Assault?

For any assault charge, an individual can also be charged with attempted assault when the accused person fails to complete the assault and merely attempts it. An attempted assault will decrease the degree of the assault by one level, reducing the consequences for that crime.

What to Do after a Charge?

If you or a loved one has been charged with assault, you should consult with an attorney. A conviction even for a misdemeanor assault charge can have a significant impact on a person’s future, well beyond the sentence imposed by the court. These charges will appear on criminal background checks, and because of the violent nature of the crimes, they can hinder your ability to get a job or keep a job after a conviction. There can also be immigration consequences to a conviction for assault, as it is considered a violent offense that can lead to deportation.

How Soon Should I Get an Attorney?

You should contact an attorney as soon as possible. An attorney is an extra protection in the early stages of your case, helping to guard you against unlawful searches and seizures, improper questioning, and improper admission of evidence. It is a good idea to get an attorney as soon as you are being questioned by police, even if you have not yet been charged. An attorney can represent you at bail hearings to determine if you will held in jail until your hearing, present pre-trial motions to prevent the admission of impermissible evidence, question witnesses before they have had time to forget what occurred on the date of the assault, and prepare for your trial. The earlier an attorney begins to work for you, the sooner they can begin advocating on your behalf.


You can contact Scott by phone at 516-742-2300 to speak to him immediately. He is available 24 hours a day, 7 days a week, year-round and your initial consultation is free.


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