Assault in the Third Degree, PL Section 120.00 Commentary and Explanation
Reproduced below is the actual text of New York's Assault in the Third Degree Law (PL Section 120.00), but interpreted and with commentary by me (Don Murray). The interpretations and commentary will give the reader, I hope, a meaningful understanding of the offense, and some of the issues related to being accused of assault in the third degree.
So here's how this works: The actual text of the law appears in italics. Commentary is normal text included inside brackets like this: [ ].
120.00 Assault in the third degree.
[Assault, like many other offenses appears in our law in several levels of seriousness that we lawyers like to call "degrees". For some strange reason in New York, as a general rule, the higher (in number) the degree, the lesser in seriousness the offense. Taking assault as an example, we see here that this offense is called assault in the "third" degree. If there is a third degree assault, then, you can reasonably expect that there is a second degree version and a first degree version. The first degree version of assault in New York will be the most serious version and the third degree version will be the least serious version of the three. An argument could be made that it might have made more sense to make the more serious offense the higher numbered degree, but that is not how New York does it. (New York also calls the trial level Court for criminal cases "Supreme Court" and the highest Court where appeals are heard the Court of Appeals, so go figure.)
A person is guilty of assault in the third degree when:
[Criminal laws are written to be seen as something similar to recipes, with certain "ingredients" that lawyers call "elements". When evaluating a set of circumstances against a particular crime, you need to map out these elements and see if the circumstances prove every single one. A crime is only considered to have been committed if every single element is proved.
Also, some crimes are written so that there is only one way to be guilty, but most crimes have several different versions. These versions are usually identified by different numbered paragraphs. Lawyers refer to the paragraphs as "subsections" for some reason, so if you hear someone talk about "120.00, subsection 1" that means the speaker is talking about assault in the third degree, paragraph 1. Each of the different paragraphs, or subsections, represents a slightly different way to commit the same crime. I like to think of these as different "flavors" of ice cream. It's all ice cream, but they taste a little different.
It is often the case that people can be charged with multiple flavors of the same offense, and when people see this in print in the criminal court complaint or in a list of their charges, they begin to panic at the volume of criminal charges against them. They naturally worry that a larger volume of charges means a more serious case where they are exposed to more jail time. More often than not, however, these fears are unwarranted. Generally, when you are charged with multiple versions of the same offense, the various charges will be considered one "transaction or occurrence". This is important because being convicted of multiple versions of the same offense or even multiple different offenses will not generally expose you to additional punishment if it is all part of the same "transaction or occurrence". As you can imagine, the notion of what is and what is not the same "transaction or occurrence" is a matter of significant controversy from time to time, but generally the idea is pretty straightforward.
1. With intent to cause physical injury to another person, he causes
such injury to such person or to a third person; or
[Paragraph, or subsection, 1 is your basic assault. It carries just a few seemingly simple ingredients (elements). To be guilty of this flavor of assault, a person must 1) have the intent to cause physical injury, 2) that intent must be directed toward another person, 3) he must actually cause physical injury, and 4) that physical injury must be caused to the person originally intended OR to some third person.
So there is actually a little more here than might meet the eye.
Notice that for this flavor of assault in the third degree, the accused must have a particular mental state at the time of the offense. He must have it in his head that he intends to cause physical injury to someone other than himself. That means that a person is not guilty of this flavor of assault three if his actions were unintentional - that is if it were a mistake or that he had not a thought in the world about injuring anyone.
Now you might wonder how it is technically possible EVER to prove what was inside someone's head. That is an excellent philosophical question, but one that our criminal justice system answers simply every single day. While we don't have machines that can prove what people were thinking, we can look at what people actually did and said and make very reasonable conclusions about what their intent was. Suppose, for example, we have a witness who says that "Jack said, 'I am going to break your nose', and then punched Bill in the face with a closed fist." Sure, we don't have a machine that tells us exactly what Jack was thinking. But we do have very compelling evidence about what he was thinking. First, we know that Jack punched Bill in the face. We can generally assume that people intend the natural consequences of their actions. Assuming Jack was not being operated like a puppet, the fact that he punched Bill in the face suggests that he intended to punch Bill in the face and one of the natural consequences of punching someone in the face is that a nose may be broken. Second, we know what Jack said. He said that he was going to break Bill's nose. This is further evidence of Jack's intent. In combination with Jack carrying out that verbal threat with actual physical acts, we have extremely powerful evidence of Jack's intent to cause physical injury to Bill.
Another subtle issue here is the very term "physical injury" itself. Our courts in New York have been wrestling with that term since long before I started as a criminal defense lawyer in New York City in 1990. What has developed is that, for purposes of this assault statute, our Courts have decided that "physical injury" does not mean ANY sort of physical injury no matter how minor. Injuries that result from petty slaps shoves and kicks for example will often not be considered "injury enough". Since this issue is not specifically addressed by the statute itself, it has become a constant source of debate in the Courts and volumes of cases have been heard on appeal complaining that in this particular case, the "physical injury" standard had not been met.
Note that this version of assault three requires that the injury be to "another" person, which means that you cannot be guilty of assault in the third degree, subsection 1, if you intentionally injure yourself, or an animal. (But don't worry, there are separate laws about those cases.)
And finally, even if it is your intention to cause physical injury to someone, that person (or a third person) must actually sustain physical injury. So if you throw a punch at someone that MIGHT have broken his nose, but didn't because the intended victim dodges the punch, you are not guilty of assault in the third degree. (You might be guilty of a separate crime of ATTEMPTED assault in the third degree, however.)
Note also, that the intended victim need not be the one injured. The way the law is worded, a person is still guilty of assault in the third degree, even if the intended victim is uninjured but some third party is injured. For example, in the example above, suppose Jack punched at Bill’s face, missed Bill, but ended up hitting Bob in the face, breaking Bob's nose.
Strictly speaking, Jack could argue that he intended to physically injure Bill, not Bob, so he should not be guilty of the assault against Bob. It was a mistake. The legislature covered up that potential loophole by specifically saying that it doesn't matter. Intend to injure one person and injure another instead, and that is your problem. You are still guilty of assault. In the law, this solution to the missing intent (to injure the bystander) is solved by a concept lawyers call "transferred intent". The notion of transferred intent says that for purposes of criminal liability, the intent to injure one person transfers to the bystander.]
2. He recklessly causes physical injury to another person; or
This second flavor of assault in the third degree is meant to address behavior that is so outlandish (or reckless) that even though it might not have been specifically intended to cause physical injury to someone, it did. This criminalization of reckless (unintentional) behavior is meant to target not everyday sort of negligence or absent minded behavior, but behavior so horrifically and obviously stupid and dangerous that we as a society are willing to treat it the same as if it were intentional.
Imagine, for example, that a person engages in a drag race with another vehicle on a road next to an elementary school at the time that school is being let out. One or more children are injured after being grazed by the person's car racing by. In this case, the driver didn't intend to injure anyone at all. Therefore the driver would not be guilty of assault in the third degree under subsection 1.
But, it could certainly be argued that drag racing next to an elementary school when school is being let out is horrific and reckless to such a degree that most of us in society would agree that it shouldn't matter. For purposes of criminal liability, the person should be treated as if he might as well have intended to injure the people he injured.
3. With criminal negligence, he causes physical injury to another
person by means of a deadly weapon or a dangerous instrument.
Criminal negligence, like recklessness is a set of circumstances that we as a society are so appalled by, that we choose to treat it as if the accused actually intended the injury caused. In this instance, the "criminal negligence" must involve a deadly weapon or dangerous instrument. These terms have very specific meanings that are specifically defined by the legislature in other sections of the law.
An example of criminal negligence involving a deadly weapon that causes physical injury might be some catastrophic failure of judgment involving the use or storage of a gun (that was otherwise legal) that somehow ended up with someone getting injured, even though the person causing the injury did not specifically intend to hurt anyone.
Assault in the third degree is a class A misdemeanor.
An A misdemeanor means that assault in the third degree is punishable by jail time of up to one year, although jail is not mandatory. Other possible sentences include, three years of probation, a combination of jail and probation, or a "conditional discharge". As a crime, and a crime involving violence, assault in the third degree can pose immigration difficulties for those who are not citizens of the United States. One interesting settlement possibility for non-citizens is a settlement involving a plea to the "reckless" flavor of assault (paragraph 2). As between an intentional assault and a reckless assault, it is generally believed that the reckless version provides a better position for immigration issues. Historically, the Federal Government has focussed more attention on "intentional" assaults.
By Don A. Murray, Esq.
I have been a New York City criminal defense lawyer for more than 27 years helping people accused of assault in the third degree and other crimes in New York City Criminal Courts. Call me at 718-268-2171 to discuss your case.
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