Nassau County Assault Lawyer

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.