New York Penal Code § 120.05: Assault in the second Degree

Assault in the second degree is of one of several assault offenses in the New York criminal code. There are 7 different circumstances under which you may face such a charge. Under New York Penal Code § 120.05, you could be prosecuted for assault in the second degree if you:

  1. Assault another person with the intent to cause serious injury to that person and you do in fact cause serious physical injury to that person or to a third person.
  2. Assault another person using a deadly weapon or dangerous instrument, intending to injure another person and in fact injuring that person or a third party.
  3. Assault an official such as a peace officer or train operator in order to prevent that person from performing his or her duties.
  4. Recklessly cause serious physical injury to another person with a deadly weapon or a dangerous instrument.
  5. Intentionally cause another person to become unconsciousness or physically impaired by administering a drug to that person without his or her consent.
  6. Injure another person while you were in the course of committing a felony.
  7. Are at least 18 years old, you injure a child who is under 11 years old, and you do so intentionally or recklessly.

It is a Class D felony.

Examples

In one case a man uses a pocket knife to cause a 16" wound in another man's abdomen. In another case a man punches a woman, causing her to fall backwards and hit her head on the sidewalk. She suffered severe injuries and ended up on life support. In both cases the men could be prosecuted for assault in the second degree based on having the intent to cause serious physical injury to another person and in fact causing serious injury.

Related Offenses
  1. Reckless endangerment second degree: New York Penal Code § 120.20
  2. Menacing in the second degree: New York Penal Code § 120.14
Defenses

An assault in the second degree charge can be based on you seriously injuring the victim. A "serious physical injury" has a specific definition under New York Penal Code § 10.00(10). If you can show that the victim's injuries were actually not that severe, then you may have a valid defense to assault in the second degree charges.

New York has a "justification" statute that allows you to use physical force against another person to protect yourself from imminent harm. This means that if the reason that you injured the other person is because you were protecting yourself from him or her, then you may have a valid defense to an assault charge.

Sentence

Assault in the second degree is a Class D felony. The maximum possible sentence is 7 years in prison. Because assault in the second degree is also classified as a violent felony, the judge is required to impose a minimum sentence of 2 years in prison. For an assault in the second degree conviction in addition to being sentenced to at least 2 years in prison you may also be required to pay a fine of up to $5,000.

As part of the criminal process the prosecutor may request and the judge grant an Order of Protection in favor of the victim. In simple terms, an Order of Protection is a court order requiring you to stay away from another person.

New York Penal Code § 120.05: Assault in the second degree

A person is guilty of assault in the second degree when:

  1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or
  2. With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or
  3. With intent to prevent a peace officer, a police officer, prosecutor as defined in subdivision thirty-one of § 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, sanitation enforcement agent, New York city sanitation worker, a firefighter, including a firefighter acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such firefighter, an emergency medical service paramedic or emergency medical service technician, or medical or related personnel in a hospital emergency department, a city marshal, a traffic enforcement officer or traffic enforcement agent, from performing a lawful duty, by means including releasing or failing to control an animal under circumstances evincing the actor's intent that the animal obstruct the lawful activity of such peace officer, police officer, prosecutor as defined in subdivision thirty-one of § 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, sanitation enforcement agent, New York city sanitation worker, firefighter, paramedic, technician, city marshal, traffic enforcement officer or traffic enforcement agent, he or she causes physical injury to such peace officer, police officer, prosecutor as defined in subdivision thirty-one of § 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, sanitation enforcement agent, New York city sanitation worker, firefighter, paramedic, technician or medical or related personnel in a hospital emergency department, city marshal, traffic enforcement officer or traffic enforcement agent; or
    3-a. With intent to prevent an employee of a local social services district directly involved in investigation of or response to alleged abuse or neglect of a child, a vulnerable elderly person or an incompetent or physically disabled person, from performing such investigation or response, the actor, not being such child, vulnerable elderly person or incompetent or physically disabled person, or with intent to prevent an employee of a local social services district directly involved in providing public assistance and care from performing his or her job, causes physical injury to such employee including by means of releasing or failing to control an animal under circumstances evincing the actor's intent that the animal obstruct the lawful activities of such employee; or
  4. He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
    4-a. He recklessly causes physical injury to another person who is a child under the age of eighteen by intentional discharge of a firearm, rifle or shotgun; or
  5. For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to him, without his consent, a drug, substance or preparation capable of producing the same; or
  6. In the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants; or
  7. Having been charged with or convicted of a crime and while confined in a correctional facility, as defined in subdivision three of § forty of the correction law, pursuant to such charge or conviction, with intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
  8. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly causes serious physical injury to such person; or
  9. Being eighteen years old or more and with intent to cause physical injury to a person less than seven years old, the defendant causes such injury to such person; or
  10. Acting at a place the person knows, or reasonably should know, is on school grounds and with intent to cause physical injury, he or she: (a) causes such injury to an employee of a school or public school district; or (b) not being a student of such school or public school district, causes physical injury to another, and such other person is a student of such school who is attending or present for educational purposes. For purposes of this subdivision the term "school grounds" shall have the meaning set forth in subdivision fourteen of § 220.00 of this chapter.
  11. With intent to cause physical injury to a train operator, ticket inspector, conductor, signalperson, bus operator or station agent employed by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions, a city marshal, a traffic enforcement officer, traffic enforcement agent, prosecutor as defined in subdivision thirty-one of § 1.20 of the criminal procedure law, sanitation enforcement agent, New York city sanitation worker, registered nurse or licensed practical nurse he or she causes physical injury to such train operator, ticket inspector, conductor, signalperson, bus operator or station agent, city marshal, traffic enforcement officer, traffic enforcement agent, prosecutor as defined in subdivision thirty-one of § 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, sanitation enforcement agent or New York city sanitation worker, while such employee is performing an assigned duty on, or directly related to, the operation of a train or bus, or such city marshal, traffic enforcement officer, traffic enforcement agent, prosecutor as defined in subdivision thirty-one of § 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, sanitation enforcement agent or New York city sanitation worker, is performing an assigned duty.
    11-a. With intent to cause physical injury to an employee of a local social services district directly involved in investigation of or response to alleged abuse or neglect of a child, vulnerable elderly person or an incompetent or physically disabled person, the actor, not being such child, vulnerable elderly person or incompetent or physically disabled person, or with intent to prevent an employee of a local social services district directly involved in providing public assistance and care from performing his or her job, causes physical injury to such employee; or
  12. With intent to cause physical injury to a person who is sixty-five years of age or older, he or she causes such injury to such person, and the actor is more than ten years younger than such person.
New York Assault in the Second Degree Lawyer

Being arrested for assault is serious. If you are convicted many aspects of your life may change forever. However, there may be defenses to a charge of assault in the second degree that only an experienced practitioner will understand. Thus, if you have been arrested for assault in the second degree or any assault charge, it is important to immediately contact someone who understands the New York criminal system. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with assault in the second degree as well as other assault crimes, menacing, reckless endangerment, stalking, rape, and child endangerment. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of assault in the following locations:

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