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New York Penal Law 120.00(1): Intentional Third Degree Assault

When you are arrested for any type of fight in New York City or outside of “Gotham’s” boroughs of Manhattan, Brooklyn, Queens or the Bronx, a typical, if not the most common, crime charged is any degree of Assault (New York Penal Law Article 120). Ranging from misdemeanors to felonies, Assault crimes and arrests involving Desk Appearance Tickets will generally charge the misdemeanor offense of New York Penal Law 120.00(1). Third Degree Assault, as an intentional crime, simply defines the offense as an intentional act on your part to cause a physical injury to some other person and you actually do cause this level of injury. Could a backhanded slap be the basis of a PL 120.00 appearance ticket and arrest? Absolutely. Could a fully cocked, bent at the elbow, tight fisted punch to the face be considered an intentional Assault? Again, no doubt. Well, how could two drastically different actions be considered a Third Degree Assault?

For the most part, the law does not dictate how an intentional Assault occurs (when weapons or dangerous instruments are involved, the crime can become a Second Degree Assault). Rather, the question that first comes to mind is whether or not as a result of your slap, kick, grapple, etc., you caused a physical injury. No, not just an annoying red mark, but whether you caused that person to suffer substantial pain. While the New York Penal Law along with legal decisions really defines “physical injury,” “physical impairment” and “substantial pain,” judges generally require some physical manifestation, a statement of this pain or proof of some form of treatment. To be clear, medical treatment is not required to prove a physical injury, but some articulation of this pain is necessary. Obviously (subject to the prosecution proving so beyond a reasonable doubt), a slap or punch may cause this type of injury.

The next mandatory piece of the “Assault puzzle,” is intent. Simply, without intending to cause physical injury to another person, you cannot have the basis of an intentional Third Degree Assault arrest (or at least a conviction) in New York. A way criminal lawyers examine this component to NY PL 120.00(1) is whether it was your conscious objective to do “X.” Here, that “X” is to cause a physical injury. If not, then the prosecution cannot satisfy the elements of intentional Assault in the Third Degree.

If Not Intentional Assault, Then What?

Assuming physical injury is established, but not intentional actions on your part, prosecutors can still charge reckless Assault in the Third Degree pursuant to New York Penal Law 120.00(2). Obviously, law enforcement must still establish you were reckless.

If prosecutors established your intent, but could not establish a physical injury, they may be able to proceed on the theory of Attempted Assault in the Third Degree. This crime is drafted as New York Penal Law 110/120.00(1). Not as high a degree a crime as either misdemeanor Assault, Attempted Third Degree Assault is a “B” misdemeanor.

Irrespective of the type of Assault charge you face, the crime is a serious one where police and prosecutors routinely arrest first with probable cause and flesh out all the evidence later.

While one day spent in custody is one day too long, it is far from an exaggeration to state the consequences of an arrest or conviction for New York Penal Law 120.00(1) can be devastating. Protect yourself. Understand and grasp both the practical and legal predicament you face.

Contact a criminal attorney who has the experience and ability to dissect your case and fully advocate your defense. The New York Assault lawyers and former Manhattan Assistant District Attorneys are both committed and ready to assist you.

Call us at 212.312.7129 or contact us online to speak with us about your Assault investigation, arrest or trial today.

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