Assault Mental States
In order to be charged with an Assault offense in New York State, the alleged offender must have a certain mental state or culpability to commit the assault. This means if the alleged offender accidentally caused injury to another person, they will not likely be charged with a criminal offense.
According to Section 15.05 of the New York Penal Law, the mental states for Assault charges are defined as follows:
- Intentionally – An individual acts intentionally if they have the conscious objective to cause the result of their assaultive conduct or to engage in such assaultive conduct.
- Knowingly – An individual acts knowingly or with knowledge if they are aware the conduct is of an assaultive nature or that the assaultive circumstance exists.
- Recklessly – An individual acts recklessly if they are aware of and consciously disregard a substantial and unjustifiable risk that the result of the conduct will occur or they consciously disregard that that the circumstance exists. The conduct must be an extreme deviation from the standard of conduct a reasonable person in the same situation would exhibit.
- Criminal Negligence – An individual acts with criminal negligence if they fail to perceive a substantial and unjustifiable risk that the result of the assaultive conduct will occur or that the possibility even exists. The risk must be of such nature that failing to perceive the risk constitutes a gross deviation from a reasonable person’s standard of care in the same situation.
Articles 70 and 80 of the New York Penal Law define the maximum penalties an individual could face if they are convicted of an Assault charge in the State of New York. An alleged assault offender’s punishments can increase depending on any of the following:
- Whether the offense is considered violent or non-violent;
- Whether the alleged offender used a weapon or dangerous instrument during the commission of the offense of assault;
- The state of mind the alleged offender had during the commission of the offense of assault;
- Whether the alleged offender was a juvenile offender;
- Whether the alleged offender was a youthful offender;
- Whether the alleged offender was a persistent or violent offender; and/or
- Whether the alleged offender has any previous criminal convictions.
§ 120.00 Assault in the third degree.
A person is guilty of assault in the third degree when:
1. With intent to cause physical injury to another person, he causes
such injury to such person or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another
person by means of a deadly weapon or a dangerous instrument.
§ 120.01 Reckless assault of a child by a child day care provider.
A person is guilty of reckless assault of a child when, being a child
day care provider or an employee thereof, he or she recklessly causes
serious physical injury to a child under the care of such provider or
employee who is less than eleven years of age.
Reckless assault of a child by a child day care provider is a class E
felony.
§ 120.02 Reckless assault of a child.
1. A person is guilty of reckless assault of a child when, being
eighteen years of age or more, such person recklessly causes serious
physical injury to the brain of a child less than five years old by
shaking the child, or by slamming or throwing the child so as to impact
the child's head on a hard surface or object.
2. For purposes of subdivision one of this section, the following
shall constitute "serious physical injury":
a. "serious physical injury" as defined in subdivision ten of section
10.00 of this chapter; or
b. extreme rotational cranial acceleration and deceleration and one or
more of the following: (i) subdural hemorrhaging; (ii) intracranial
hemorrhaging; or (iii) retinal hemorrhaging.
Reckless assault of a child is a class D felony.
§ 120.03 Vehicular assault in the second degree.
A person is guilty of vehicular assault in the second degree when he
or she causes serious physical injury to another person, and either:
(1) operates a motor vehicle in violation of subdivision two, three,
four or four-a of section eleven hundred ninety-two of the vehicle and
traffic law or operates a vessel or public vessel in violation of
paragraph (b), (c), (d) or (e) of subdivision two of section
forty-nine-a of the navigation law, and as a result of such intoxication
or impairment by the use of a drug, or by the combined influence of
drugs or of alcohol and any drug or drugs, operates such motor vehicle,
vessel or public vessel in a manner that causes such serious physical
injury to such other person, or
(2) operates a motor vehicle with a gross vehicle weight rating of
more than eighteen thousand pounds which contains flammable gas,
radioactive materials or explosives in violation of subdivision one of
section eleven hundred ninety-two of the vehicle and traffic law, and
such flammable gas, radioactive materials or explosives is the cause of
such serious physical injury, and as a result of such impairment by the
use of alcohol, operates such motor vehicle in a manner that causes such
serious physical injury to such other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision one of section 25.24 of the parks, recreation and historic
preservation law or operates an all terrain vehicle as defined in
paragraph (a) of subdivision one of section twenty-two hundred
eighty-one of the vehicle and traffic law and in violation of
subdivision two, three, four, or four-a of section eleven hundred
ninety-two of the vehicle and traffic law, and as a result of such
intoxication or impairment by the use of a drug, or by the combined
influence of drugs or of alcohol and any drug or drugs, operates such
snowmobile or all terrain vehicle in a manner that causes such serious
physical injury to such other person.
If it is established that the person operating such motor vehicle,
vessel, public vessel, snowmobile or all terrain vehicle caused such
serious physical injury while unlawfully intoxicated or impaired by the
use of alcohol or a drug, then there shall be a rebuttable presumption
that, as a result of such intoxication or impairment by the use of
alcohol or a drug, or by the combined influence of drugs or of alcohol
and any drug or drugs, such person operated the motor vehicle, vessel,
public vessel, snowmobile or all terrain vehicle in a manner that caused
such serious physical injury, as required by this section.
Vehicular assault in the second degree is a class E felony.
§ 120.04 Vehicular assault in the first degree.
A person is guilty of vehicular assault in the first degree when he or
she commits the crime of vehicular assault in the second degree as
defined in section 120.03 of this article, and either:
(1) commits such crime while operating a motor vehicle while such
person has .18 of one per centum or more by weight of alcohol in such
person's blood as shown by chemical analysis of such person's blood,
breath, urine or saliva made pursuant to the provisions of section
eleven hundred ninety-four of the vehicle and traffic law;
(2) commits such crime while knowing or having reason to know that:
(a) his or her license or his or her privilege of operating a motor
vehicle in another state or his or her privilege of obtaining a license
to operate a motor vehicle in another state is suspended or revoked and
such suspension or revocation is based upon a conviction in such other
state for an offense which would, if committed in this state, constitute
a violation of any of the provisions of section eleven hundred
ninety-two of the vehicle and traffic law; or (b) his or her license or
his or her privilege of operating a motor vehicle in the state or his or
her privilege of obtaining a license issued by the commissioner of motor
vehicles is suspended or revoked and such suspension or revocation is
based upon either a refusal to submit to a chemical test pursuant to
section eleven hundred ninety-four of the vehicle and traffic law or
following a conviction for a violation of any of the provisions of
section eleven hundred ninety-two of the vehicle and traffic law;
(3) has previously been convicted of violating any of the provisions
of section eleven hundred ninety-two of the vehicle and traffic law
within the preceding ten years, provided that, for the purposes of this
subdivision, a conviction in any other state or jurisdiction for an
offense which, if committed in this state, would constitute a violation
of section eleven hundred ninety-two of the vehicle and traffic law,
shall be treated as a violation of such law;
(4) causes serious physical injury to more than one other person;
(5) has previously been convicted of violating any provision of this
article or article one hundred twenty-five of this title involving the
operation of a motor vehicle, or was convicted in any other state or
jurisdiction of an offense involving the operation of a motor vehicle
which, if committed in this state, would constitute a violation of this
article or article one hundred twenty-five of this title; or
(6) commits such crime while operating a motor vehicle while a child
who is fifteen years of age or less is a passenger in such motor vehicle
and causes serious physical injury to such child.
If it is established that the person operating such motor vehicle
caused such serious physical injury or injuries while unlawfully
intoxicated or impaired by the use of alcohol or a drug, or by the
combined influence of drugs or of alcohol and any drug or drugs, then
there shall be a rebuttable presumption that, as a result of such
intoxication or impairment by the use of alcohol or a drug, or by the
combined influence of drugs or of alcohol and any drug or drugs, such
person operated the motor vehicle in a manner that caused such serious
physical injury or injuries, as required by this section and section
120.03 of this article.
Vehicular assault in the first degree is a class D felony.
§ 120.04-a Aggravated vehicular assault.
A person is guilty of aggravated vehicular assault when he or she
engages in reckless driving as defined by section twelve hundred twelve
of the vehicle and traffic law, and commits the crime of vehicular
assault in the second degree as defined in section 120.03 of this
article, and either:
(1) commits such crimes while operating a motor vehicle while such
person has .18 of one per centum or more by weight of alcohol in such
person's blood as shown by chemical analysis of such person's blood,
breath, urine or saliva made pursuant to the provisions of section
eleven hundred ninety-four of the vehicle and traffic law;
(2) commits such crimes while knowing or having reason to know that:
(a) his or her license or his or her privilege of operating a motor
vehicle in another state or his or her privilege of obtaining a license
to operate a motor vehicle in another state is suspended or revoked and
such suspension or revocation is based upon a conviction in such other
state for an offense which would, if committed in this state, constitute
a violation of any of the provisions of section eleven hundred
ninety-two of the vehicle and traffic law; or (b) his or her license or
his or her privilege of operating a motor vehicle in this state or his
or her privilege of obtaining a license issued by the commissioner of
motor vehicles is suspended or revoked and such suspension or revocation
is based upon either a refusal to submit to a chemical test pursuant to
section eleven hundred ninety-four of the vehicle and traffic law or
following a conviction for a violation of any of the provisions of
section eleven hundred ninety-two of the vehicle and traffic law;
(3) has previously been convicted of violating any of the provisions
of section eleven hundred ninety-two of the vehicle and traffic law
within the preceding ten years, provided that, for the purposes of this
subdivision, a conviction in any other state or jurisdiction for an
offense which, if committed in this state, would constitute a violation
of section eleven hundred ninety-two of the vehicle and traffic law,
shall be treated as a violation of such law;
(4) causes serious physical injury to more than one other person;
(5) has previously been convicted of violating any provision of this
article or article one hundred twenty-five of this title involving the
operation of a motor vehicle, or was convicted in any other state or
jurisdiction of an offense involving the operation of a motor vehicle
which, if committed in this state, would constitute a violation of this
article or article one hundred twenty-five of this title; or
(6) commits such crime while operating a motor vehicle while a child
who is fifteen years of age or less is a passenger in such motor vehicle
and causes serious physical injury to such child.
If it is established that the person operating such motor vehicle
caused such serious physical injury or injuries while unlawfully
intoxicated or impaired by the use of alcohol or a drug, or by the
combined influence of drugs or of alcohol and any drug or drugs, then
there shall be a rebuttable presumption that, as a result of such
intoxication or impairment by the use of alcohol or a drug, or by the
combined influence of drugs or of alcohol and any drug or drugs, such
person operated the motor vehicle in a manner that caused such serious
physical injury or injuries, as required by this section and section
120.03 of this article.
Aggravated vehicular assault is a class C felony.
§ 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 section 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 school crossing guard
appointed pursuant to section two hundred eight-a of the general
municipal law, 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 section 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,
school crossing guard appointed pursuant to section two hundred eight-a
of the general municipal law, 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 section 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,
school crossing guard, 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
3-b. With intent to prevent an employee of the New York city housing
authority from performing his or her lawful duties while located on
housing project grounds, real property, or a building owned, managed, or
operated by such authority he or she causes physical injury to 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 section
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 section 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 school crossing guard appointed pursuant
to section two hundred eight-a of the general municipal law, a traffic
enforcement officer, traffic enforcement agent, prosecutor as defined in
subdivision thirty-one of section 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, school
crossing guard appointed pursuant to section two hundred eight-a of the
general municipal law, traffic enforcement officer, traffic enforcement
agent, prosecutor as defined in subdivision thirty-one of section 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
11-b. With intent to cause physical injury to an employee of the New
York city housing authority performing his or her lawful duties while
located on housing project grounds, real property, or a building owned,
managed, or operated by such authority he or she 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.
Assault in the second degree is a class D felony.
§ 120.06 Gang assault in the second degree.
A person is guilty of gang assault in the second degree when, with
intent to cause 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.
Gang assault in the second degree is a class C felony.
§ 120.07 Gang assault in the first degree.
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.
Gang assault in the first degree is a class B felony.
§ 120.08 Assault on a peace officer, police officer, fireman or
emergency medical services professional.
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.
Assault on a peace officer, police officer, fireman or emergency
medical services professional is a class C felony.
§ 120.09 Assault on a judge.
A person is guilty of assault on a judge when, with intent to cause
serious physical injury and prevent a judge from performing official
judicial duties, he or she causes serious physical injury to such judge.
For the purposes of this section, the term judge shall mean a judge of a
court of record or a justice court.
Assault on a judge is a class C felony.
§ 120.10 Assault in the first degree.
A person is guilty of assault in the first 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 by means of a
deadly weapon or a dangerous instrument; or
2. With intent to disfigure another person seriously and permanently,
or to destroy, amputate or disable permanently a member or organ of his
body, he causes such injury to such person or to a third person; or
3. Under circumstances evincing a depraved indifference to human life,
he recklessly engages in conduct which creates a grave risk of death to
another person, and thereby causes serious physical injury to another
person; or
4. In the course of and in furtherance of the commission or attempted
commission of a felony or of immediate flight therefrom, he, or another
participant if there be any, causes serious physical injury to a person
other than one of the participants.
Assault in the first degree is a class B felony.
§ 120.11 Aggravated assault upon a police officer or a peace officer.
A person is guilty of aggravated assault upon a police officer or a
peace officer when, with intent to cause serious physical injury to a
person whom he knows or reasonably should know to be a police officer or
a peace officer engaged in the course of performing his official duties,
he causes such injury by means of a deadly weapon or dangerous
instrument.
Aggravated assault upon a police officer or a peace officer is a class
B felony.
§ 120.12 Aggravated assault upon a person less than eleven years old.
A person is guilty of aggravated assault upon a person less than
eleven years old when being eighteen years old or more the defendant
commits the crime of assault in the third degree as defined in section
120.00 of this article upon a person less than eleven years old and has
been previously convicted of such crime upon a person less than eleven
years old within the preceding ten years.
Aggravated assault upon a person less than eleven years old is a class
E felony.
If you have been arrested for an assault as a result of a bar fight or defending your girlfriend at the movie theatre from an unwanted advance by another, call the Law Firm of Michael A. Arbeit, P.C. today for a free and confidential consultation. The police have a saying that "the winner of the fight gets arrested and goes to jail and the loser of the fight goes to the hospital." A person has the right to defend themselves and ofter a valid claim of Self Defense will get the initial charges greatly reduced or even dismissed prior to trial if presented the right way to the district attorney's office.