Article: You Don’t Have to Be a Gang Member to Be Charged with “Gang Assault”

New York Supreme Court

What is meant by “Gang Assault” in New York State?

Sometimes, a legal term means exactly what you think it does. In other cases, not so much. So you may very well be surprised to learn that in New York, you can be charged for either of two felonies known as “gang assault,” even if you don’t have, and never had, any connection with a gang.

That’s right. It may be a little difficult to get your mind around, but a gang-assault charge has no requirement to show you are, or ever have been, part of any organization, much less that you’ve previously acted or conspired with anything like what most people would think of when they hear the word “gang.”

Two sections of the state penal code define “gang assault.” The more serious charge is first-degree gang assault, which section 120.07 defines as committing any crime that intentionally causes serious physical injury to someone while “aided by two or more other persons” at the scene. It’s a class B felony, punishable by a prison sentence from five to 25 years. More serious injuries bring more serious charges.

Second-degree gang assault, found in section 120.06 of the New York penal code, makes committing a crime which intentionally causes physical injury to someone while aided by two or more persons a Class C felony, punishable by from 3.5 to 15 years in state prison. New York’s penal code has many other non-gang types of assault, and the least serious of these, third-degree assault, is a misdemeanor, not a felony, with a maximum sentence of a year in jail.

Gang affiliation is not a requirement

So even though the penalties are quite severe, “gang assault” charges are not limited to real members of a criminal gang. Besides a crime, intent and injury, all the prosecutor would need to establish is that you were one of three or more people acting, at least for the moment, together – even if you had never previously met either those fighting on your side or your opponents.

So instead of scenes you might find in gangster movies, gang-assault charges are more likely to arise from more ordinary situations – for example, a run-of-the-mill street fight or a Friday night barroom altercation that gets out of hand. In fact, New York’s gang-assault provisions weren’t written to crack down on organized crime, just to provide harsher penalties to discourage larger-scale assaults.

Wrong place, wrong time

Here’s another surprise: you can be convicted on gang-assault charges even without any evidence showing you were the one who actually caused the injury. If you’re considered part of a gang assault, you can be held responsible for an injury inflicted by another person on your side of the fight, if you were in the mix and “requested, commanded, importuned or aided” the person who actually caused the injury.