NY Penal Law § 120.07: Gang assault in the first degree

Gang assault is a type of assault that involves at least 3 people involved in the assault of one or more people. There are 2 degrees of gang assault: gang assault in the second degree and gang assault in the first degree. Gang assault in the first degree is the more serious offense. Under New York Penal Code § 120.07, you will face this charge if you are involved in a gang assault, your intent was to cause serious physical injury, and as a result of the assault the victim suffered serious physical injury. It is a class B felony. Physical injury is defined as one that causes an impairment of physical condition or substantial pain, while serious physical injury is one that is so serious that it creates a substantial risk of death, causes death, causes protracted disfigurement or impairment of health, or causes loss of a bodily organ. The difference between a second degree gang assault charge and a first degree gang assault charge is the intent. For a second degree charge your intent would have been to cause physical injury while for a first degree charge you intent would have been to cause serious physical injury.

A man and 2 friends jumped a woman, punched her a few times and grabbed her purse. The woman went to the emergency room but was not admitted to the hospital. She has a few minor bruises and a headache. The attending physician gave her an over-the-counter pain medication. The man was arrested and charged with gang assault in the first degree. The man's attorney objected to the charge, arguing the woman did not suffer a serious physical injury. The prosecutor would have a difficult time sustaining a first degree gang assault charge based on minor injuries that did not require hospitalization or treatment other than an over-the-counter pain medication.

1. Gang assault in the second degree: New York Penal Code § 120.06
2. Assault in the first degree: New York Penal Code § 120.10

The lack of seriousness of the victim's injury may provide a defense to a charge of gang assault in the first degree. A gang assault in the first degree charge is based on the defendant intending to cause serious physical injury and the victim suffering serious physical injury. If either of these factors is absent, you have a valid defense against the charge. The court will look closely at medical evidence to determine whether or not the victim suffered from a serious injury. Factors which courts may consider include:

• Whether the victim lost consciousness
• Whether the victim suffered a permanent scar
• Whether the victim experienced a great deal of pain
• Whether any vital organs were damaged
• Whether the victim had to undergo surgery

Because gang assault in the first degree is a class B felony, the maximum possible sentence is 25 years in prison. Because it is also classified as a violent felony, the judge is required to impose a minimum sentence of 5 years. The length of your prison sentence will depend on factors such as your prior criminal record. In addition the judge may order you to pay a fine of up to $5,000.

A person is guilty of gang assault in the first degree when, with intent to cause serious physical injury to another person and when aided by two or more other persons actually present, he causes serious physical injury to such person or to a third person.

Being arrested for gang assault is serious. If you are convicted you could end up in prison for several years. However, there may be defenses to a charge of gang assault in the second degree that only an experienced practitioner will understand. Thus, if you have been arrested for gang assault it is important to immediately contact someone who understands the New York criminal system. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with misdemeanors and felonies such as assault in the first degree, assault in the second degree, menacing, reckless endangerment, stalking, rape, and child endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.