Second Degree Assault: New York Penal Code § 120.05

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Second degree assault is one of several offenses of assault in New York’s criminal code. This offense is a Class D felony. Under New York Penal Code 120.05, there are seven circumstances that fall under this code’s purview. A person could be prosecuted for second degree assault if:

1. A person assaults another person intending to cause serious injury to the latter and, in fact, does so or, while in the act, injures a third person; or
2. A person assaults another person intending to cause serious injury to the latter and, in fact, does so with a deadly weapon or a dangerous instrument or, while in the act, injures a third person; or
3. A person assaults a train operator or a peace officer, preventing them from performing their duties; or
4. A person causes serious physical injury to another person recklessly with a dangerous instrument or a deadly weapon; or
5. A person causes another person’s unconsciousness or physical impairment intentionally by administering a drug to the latter without that person’s consent; or
6. A person is in the act of committing a felony and injures another person in the process; or
7. A person who is at least eighteen years of age injures a child who is less than eleven years of age and does so recklessly and intentionally.

Suppose two men were at odds over their business dealings, and one used a knife to stab the other in the abdomen to cause a serious gash that bled profusely. The injured man survived, but was hospitalized for several weeks after undergoing surgery to close the deep wound, recover from extensive blood loss and heal internal damage.

Suppose a man strikes a woman in the forehead, causing her to fall and hit her head on a fire hydrant. The woman was rendered unconscious and suffered severe brain injury. She became dependent on life support systems for survival.

In both cases, the men who inflicted injury on another could be charged with second degree assault because they had the intent and, in fact, caused serious injury on another.

Seriousness 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 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.

Exercising self defense. A New York “justification” statute permits a person to use physical force against another to protect themselves from imminent harm. In other words, a person who has reason to believe that they were in imminent danger and acted to protect themselves against injury has the right to exercise self defense, even if it means assaulting the attacker.

Other lines of defense. Defense attorneys who are extensively experienced in many types of assault cases are more likely to have within their repertoire defensive strategies and techniques upon which to build a compelling case in defense of their clients.

Imprisonment. Conviction of the crime of second degree assault as a Class D felony carries a sentence of up to seven years of imprisonment. However, as a violent felony, the prison sentence must be at least two years. The presiding judge will assess the convicted person’s character and prior criminal record when deciding upon, what he or she considers, a fair and just sentence.

Monetary fine. The presiding judge may also levy a fine up to $5000.

Order of protection. In addition to the prison sentence and monetary fine, the convicted person may be ordered from staying away from another person, particularly the victim.

To elaborate, a person is guilty of committing the Class D felony, second degree assault, if:

1. A person intends to inflict serious physical injury on another person, and does so to the latter or a third person; or
2. A person intends to inflict serious physical injury on another person, and does so to the latter or a third person with a dangerous instrument or deadly weapon; or
3. With the intent to prevent a public servant or medical professional from carrying out their responsibilities, a person inflicts serious physical injury (by their own hands or by use of an animal that not detained) on a peace officer, a police officer, a prosecutor as described in § 1.20 subdivision 31 of the criminal procedure law, a registered nurse, a licensed practical nurse, a sanitation enforcement agent or worker, a firefighter, an emergency paramedic or medical professional, a city marshal, a traffic officer, a social service worker; or
4. A person causes serious physical injury to another person by using a dangerous instrument or deadly weapon, including reckless injury of a child under the age of eighteen by intentionally discharging a firearm, rifle or shotgun; or
5. A person intentionally causes physical impairment or injury, stupor, or unconsciousness on another person by administering without their consent a preparation, substance, or drug capable of producing such effects; or
6. A person causes physical injury to a person other than one of the participants in the act of or attempted act of committing a felony (other than a felony that is defined in article 130 which requires immediate flight or corroboration); or
7. A convicted criminal who is confined in a correctional facility as described in § 40 subdivision 3 of the correctional law intentionally causes physical injury to another person or to a third person; or
8. A person who is at least eighteen years of age intentionally and recklessly causes physical injury to a person who is less than eleven years of age; or
9. A person who is at least eighteen years of age intentionally causes physical injury to a person who is less than seven years of age; or
10. A person who is not a student at the school and should reasonably know that they are acting on school grounds, intentionally causes physical injury to (a) an employee of a school or public school district or (b) a student who is on school grounds and is attending for educational reasons. The term “school grounds” is described in § 220.00 subdivision 14 of this chapter; or
11. A person intentionally causes physical injury to a person who is performing an assigned duty in relationship to any transit agency, authority or company (public or private) whose operation is authorized by the State of New York or any of its political subdivisions; or
12. A person who is not a child, vulnerable elderly person or an incompetent or physically disabled person intentionally causes physical injury to a local district social service employee directly involved in the investigation of or response to an alleged neglect or abuse of a child, vulnerable elderly person or an incompetent or physically disabled person.
13. A person intentionally physically injures a person who is at least sixty-five years of age and that culprit is more than ten years younger than the victim.

To successfully defend against a charge of second degree assault, it is imperative to immediately seek legal advice from a knowledgeable and experienced defense attorney firm with highly qualified staff to effectively protect your legal rights and interests.

The Barry C. Weiss P.C. attorney firm has aggressively defended people charged with second degree assault in the criminal courts of New York state. The 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 developing 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.

For additional information, refer to the following §s of the New York Penal Code:

1. Second degree menacing: § 120.14
2. Second degree reckless endangerment: § 120.20