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What Constitutes an Assault in the Third Degree Charge?


Assault means something very specific when it comes to torts and personal injury law. In tort law, an assault refers to an attempt or threat of violence – not actual violence itself. This may surprise people. But it’s one of the first things most American lawyers learned in law school.
A New York Criminal Lawyer said that, the best criminal defense of an Assault case depends on many factors. Regardless of where you are in New York, your criminal defense attorney should always pursue numerous legal angles. Is the Assault complaint/information against you legally sufficient? Has the complaint/information established a physical injury or substantial pain? Are there any witnesses or are there pictures or video of the incident? How has the evidence been preserved? Not an exhaustive list, the above questions are tremendously important ones that your criminal defense attorney needs to know when defending your Assault case.

It is also very important to understand as the accused the nuances between certain types or levels of Assault. For example, if you are charged with intentional Assault in the Third Degree pursuant to P.L. 120.00(1), but you were acting recklessly, then your actions may or may not satisfy the intentional element of the offense. Instead, a charge of P.L. 120.00(2) would be appropriate. In the latter form of Assault, the intentional requirement is replaced with a reckless element. Although the levels of the crime are the same, they are both misdemeanors, if your mental state was reckless as opposed to intentional, then P.L. 120.00(1) would not be the appropriate charge.

An “Intentional Assault” of the first degree or second degree requires proof of intent. Where intent to cause serious physical injury is an element of the offense, the prosecution must prove that the defendant intended to cause serious physical injury beyond a reasonable doubt. When only intent to cause physical injury is required, no additional specific intent beyond the intent to cause injury needs to be proven. A defendant’s intent may be established through actions, conduct, surrounding circumstances, and/or implication.

In New York State, some forms of second degree assault and third-degree assault do not require an intentional state of mind. “Aggravated Assault” is charged when a defendant is believed to have caused serious physical injury to a person known or reasonably should be known to be an on-duty police officer or peace officer; causes such injury with a deadly weapon or dangerous instrument; or a defendant 18 years old or more commits third-degree assault upon a person less than 11 years old and has been previously convicted of the same offense within the last 3 years.

Separate from any criminal prosecution for assault, a victim may pursue civil damages for injuries caused by it. After a determination by a judge or jury that an assault was committed, the next step is to determine what compensation is appropriate.

Three types of damages may be awarded. Compensatory damages, such as medical expenses, are meant to compensate for the injury sustained. Nominal damages are a small sum. Nominal damages act as an acknowledgment that a person has suffered a technical invasion of rights. They are awarded in cases where no actual injury has resulted, or where an injury occurred, but the amount has not been established. Finally, punitive damages may sometimes be awarded. Punitive damages may be awarded in particularly egregious circumstances, as a way to further punish the wrongdoer. Punitive damages go above and beyond compensatory damages.

A New York Assault Lawyer said that, another issue that I have witnessed both as a prosecutor and criminal defense attorney is where a person is charged with Assault in the Second Degree, a felony punishable by up to seven years in state prison, but a critical element is not made out. Pursuant to P.L 120.05(1), an individual is guilty of this charge when with the intent to cause serious physical injury to another person, he causes such injury to such person or to a third person. Here, your criminal defense attorney needs to challenge the validity of the “serious physical injury.” Unlike mere “physical injury” such as a black eye or bloody cut lip, “serious physical injury” requires the creation of substantial risk of death or causes, among other things, protracted disfigurement or impairment of health. So, in the event that it was your intent to cause “serious physical injury,” but the injury suffered did not rise to this level, then you are not guilty of Assault in the Second Degree. Moreover, if you were reckless in your actions and caused “serious physical injury,” then you must have used a weapon or dangerous instrument to cause this injury. The recklessness by itself will not be sufficient to satisfy the elements of Assault in the Second Degree.

The nuances of each and every Assault charge in the New York Penal Law are extensive. It would take hours of discussion to go through each. That being said, it is imperative that the time is spent analyzing the specific charges levied against you or a loved one to make sure that the elements of each crime charged are satisfied.

If you are a victim of assault, you will need the help of a New York Order of Protection Attorney and New York Criminal Attorney at Stephen Bilkis and Associates.

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