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An assault is the intentional and reckless infliction of physical injury upon another person. If at least three people participate in the assault, then the offense is elevated from the crime of assault to the crime of gang assault, a Class C felony. While in today’s world, the term “gang” may be associated with an identifiable and organized street gang, for the purposes of this statute, “gang” refers to three or more people who may or may not be members of an organized “gang.” Under New York Penal Code 120.06, three or more people who intentionally cause physical injury to another person may be prosecuted for second degree gang assault.
Hypothetical CaseSuppose four men approached two women in a public park. The two women were minding their own business and tried to ignore the men. The men decided to make them pay attention to them. One of the men called on the other three men to physically attack the two women who, as a result, suffered severe injuries to their arms and legs, were beaten unconscious and suffered brain injury. All four of the men could be prosecuted for second degree gang assault because they all participated in attacking the women, either by calling for the beating or by directly injuring the women.
Possible DefensesSeriousness of injury in question. If the gravity of the injury does not meet the criteria for a “serious physical injury” as specifically defined in New York Penal Code § 10.00(10), then the charge of second degree gang assault will not hold up in court. If it can be proven that the afflictions did not satisfy the definition of “serious physical injury” as defined in New York’s penal code, then this could prove to be a viable defensive position. The court considers an injury “serious” if it is life-threatening or permanently disfiguring. Even a series of stab wounds may not necessarily be considered “serious” if they are not seen as life-threatening or permanently disfiguring.
Lack of intent. If it can be shown that the accused did not have the intention to injure another person, then this may prove to be a viable defensive tactic in the effort to avoid conviction for violating code § 120.06.
Other lines of defense. Defense attorneys who are experienced in many types of assault cases are more likely to have within their repertoire defensive strategies and techniques upon which to develop a compelling case in defense of their clients.
Possible SentenceImprisonment. Conviction of the crime of second degree gang assault as a Class C felony carries a sentence of up to fifteen years of imprisonment. However, as a violent felony, the prison sentence must be at least two years in duration. The presiding judge will assess the convicted person’s character and prior criminal record when handing down the sentence.
Monetary fine. The presiding judge may also levy a fine up to $5000.
NY Penal Code § 120.06: Second Degree Gang AssaultTo summarize, a person is guilty of committing the Class C felony, second degree gang assault, if they are aided by two or more people and have the intention to cause physical injury to another person and act to cause the physical injury to that person.
Attorney to Defend Against the Charge of Second Degree Gang AssaultTo successfully defend against a charge of second degree gang assault, it is imperative to seek legal counsel from an experienced and skilled defense attorney firm with highly qualified staff to effectively protect your legal rights and interests.
The Barry C. Weiss P.C. attorney firm has ardently defended people charged with second degree gang assault in the New York state criminal courts. The Elliot Adler PC attorney firm also has expertise in cases involving other felonies as well as misdemeanors, including any assault charge, second degree vehicular assault, or aggravated vehicular assault. The Elliot Adler PC law firm is committed to creating effective defense cases and helping their clients avoid conviction.
We can be reached at (212) 785-1300 or newyorkcriminallawyer24-7.com to schedule a no-obligation, free legal consultative meeting to evaluate your case.
Related OffensesFor additional information, refer to the following §s of the New York Penal Code: