NY Penal Law § 120.08: Assault on a peace officer, police officer, fireman or emergency medical services professional

While any type of assault is a serious crime, law enforcement considers assaulting a police officer as a particularly egregious offense. Under New York Penal Code § 120.08 you will have committed this crime if with intent to prevent a peace officer, police officer, fireman or emergency medical services professional from performing his or her lawful duty, you cause that police officer serious physical injury. A serious physical injury is an injury that creates a substantial risk of death, causes death, causes protracted disfigurement or impairment of health, or causes loss of a bodily organ. Assault on a police officer is a class C felony.

A man was sitting in his legally parked SUV when an unmarked police car pulled up to the driver's side of the SUV. The police officer asked the man what he was doing. The man gave the police officer a short, curt answer. The police officer was unsatisfied with the man's answer. The officer approached the SUV, opened the door and ordered the man to exit the SUV. The man shifted into drive, pressed his foot down on the gas pedal, and hit the police officer. The officer suffered severe injuries. The man probably will not be prosecuted for assault on a peace officer under New York Penal Code § 120.08 since the stop was not lawful. Arguably, the police officer did not have probable cause to "stop" the car and order the man to get out of it.

1. Assault in the second degree: New York Penal Code § 120.05
2. Aggravated assault upon a police officer or a peace officer: New York Penal Code § 120.11

To be convicted of assault on a peace officer the statute requires that the injury be a serious physical injury. If the injury is not as serious as the statute requires, then you have a valid defense to an assault on a peace officer charge.

Another possible defense is the incident occurred at a time when the officer was not in the midst of performing his lawful duties. For example if while the officer is off duty you get into a physical fight with him over a game of darts, you cannot be prosecuted for assault on a peace officer. However, you may face other assault charges.

Assault on a peace officer is a class C felony. The maximum possible sentence is 15 years in prison and a $5,000 file. Because assault on a peace officer is also classified as a violent felony, the judge is required to impose a minimum sentence of 3 1/2 years in prison even if you have no prior convictions. If you do have one or more prior felony convictions, the minimum sentence will be greater.

A person is guilty of assault on a peace officer, police officer, fireman or emergency medical services professional when, with intent to prevent a peace officer, police officer, a fireman, including a fireman acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such fireman, or an emergency medical service paramedic or emergency medical service technician, from performing a lawful duty, he causes serious physical injury to such peace officer, police officer, fireman, paramedic or technician.

Being arrested for assault on a peace officer is very serious. If you are convicted you will be incarcerated for multiple years, have to pay fines and have a criminal record. However, there may be defenses to a charge of assault on a peace officer that only an experienced practitioner will understand. Thus, if you have been arrested for a crime related to assaulting a peace officer it is important to immediately contact someone who is familiar with the New York criminal court 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.