New York Penal Law 120.00(2): Reckless Third Degree Assault

Not as commonly prosecuted as its intentional counterpart, reckless Assault in the Third Degree (New York Penal Law 120.00(2)) is no less serious and equally destructive in terms of career, embarrassment and possible incarceration. While there are times PL 120.00(2) is charged as the top offense or main theory of a criminal court complaint, it is very often charged along with intentional misdemeanor Assault in the Third Degree (New York Penal Law 120.00(1)) as a fall back theory in the event a judge or jury finds that an accused’s conduct is not intentional. Both crimes are “A” misdemeanors and a conviction can land a defendant in jail for up to one year. In the City of New York, incarceration is spent on Rikers Island. Clearly, no elaboration is needed as to why one would want to avoid spending even a moment in that jail.

No matter the Assault allegation, for a misdemeanor complaint to proceed there must be some form of physical injury. This injury must constitute substantial pain. Not scientific, courts routinely examine if there is a visible wound (it could be fairly small), whether the complainant was treated at the scene or received medical attention and if the accuser suffered substantial pain. Mere annoyance does not reach that threshold.

• Intentional Assault in the Third Degree: New York Penal Law 120.00(1)
• Attempted Assault in the Third Degree: New York Penal Law 110/120.00(1)
• Harassment in the Second Degree: New York Penal Law 240.26

Unlike NY PL 120.00(1), where, again, the injury requirement is the same, the prosecution must establish you behaved in a reckless manner when you caused the substantial pain or impairment of another person’s physical condition. Under the law, you are reckless when you are aware of and consciously disregard a substantial and unjustifiable risk that a particular result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

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The bottom line with any type or subsection of New York Penal Law 120.00, the best defense is one that is thought out as early as possible, based not on emotion but evidence and presented in a clear and convincing manner. Without knowing the law, understanding the facts and consulting with your attorney, you can irreversibly jeopardize your case. Even worse, a delay in moving forward can change the landscape of your criminal case.

Assert your rights. Read and learn about the criminal law. Get the help you need in the courtroom and for your future. Contact the New York Assault attorneys and former Manhattan prosecutors at Saland Law.

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