Second degree assault is a serious offense that comes with significant, life-changing consequences. Second degree assault, a class D felony, is quite a step up from third degree assault, a class A misdemeanor. If you or someone you know is facing charges for second degree assault in New York, then they need a legal team ready to fight on their behalf. The consequences of being found guilty are too significant not to take seriously.
Key Legal Definitions for §120.05 Cases
The definitions within New York’s assault statutes are critical because they dictate the severity of the charge, the required evidence, and the potential sentencing.
- Second Degree Assault within New York Penal Law §120.05. Second Degree Assault includes intent to cause serious physical harm or physical injury, including substantial risk of death, serious disfigurement, or protracted organ impairment, and actually causing it. It’s a step up from basic assault, focusing on greater harm, aggravating circumstances like weapons or victim status, or specific criminal contexts.
- Serious physical harm. This means an impairment creating a substantial risk of death, causing death, serious and drawn-out disfigurement, extended impairment of health, or protracted loss or impairment of a bodily organ’s function, far exceeding simple pain or minor wounds, requiring a significant, lasting impact on the victim’s well-being.
- Physical injury. This is defined as an impairment of physical condition or substantial pain.
- Deadly weapon. This term refers broadly to any instrument, device, or item capable of causing death or serious physical injury, encompassing firearms, knives, bats, or even everyday objects used with intent.
- Dangerous instrument. Alternatively, this phrase emphasizes when an item is being used to cause injury. It can be any instrument, article, or substance that, under the circumstances, is readily capable of causing death or serious physical injury.
Second Degree Assault
Second degree assault generally involves situations where someone has intentionally caused “serious physical harm” or “physical harm” while using a deadly weapon or dangerous implement. However, the law describes twelve scenarios where second degree assault is considered an appropriate charge. They are:
- Intentionally causing a serious physical injury
- Causing serious physical injury with a dangerous weapon through reckless conduct
- Using a dangerous weapon to intentionally cause physical injury
- The injury may be caused by the defendant or an accomplice
- Causing physical injury to police officers or others in order to prevent them from performing their duties
- Causing physical injury to others when attempting to commit a felonious act or when fleeing after
- Causing stupor or impairment by providing a substance or drug to someone without their consent
- Causing intentional physical injury to an intended victim or another party after having been convicted of a crime and incarcerated
- Intentionally causing physical harm to a nurse, someone involved in traffic enforcement, or a person connected with the operation of a bus or train
- Causing physical harm to a student or school employee on school grounds
- Intentionally inflicting injury on a person less than seven years of age
- Intentionally causing physical harm to someone over the age of 65 and at least ten years older than the defendant
Second Degree Assault Punishment
The consequences of being found guilty of second degree assault can be significant and can include:
- A minimum of two years in prison and up to seven years in prison, possibly more with prior convictions
- A fine of up to $5000
- Restitution of up to $15,000
- Post-release supervision for 18-36 months
- Orders of protection
- A criminal record that impacts their employment, bars the convicted from certain professions, prevents ownership of a gun, and imposes other hindrances
The prison time that is handed down depends upon the convicted person’s prior convictions. This includes any felony convictions within the last ten years. The labels that affect sentencing are:
- Non-Violent Predicate: Someone with a non-violent felony prior conviction in the last ten years receives a minimum three-year prison sentence
- Violent Predicate: Someone with a violent felony prior conviction in the last ten years receives a minimum five-year prison sentence
- Persistent Felony Offender: Someone with at least two felony convictions in the last ten years receives a minimum sentence of 15-25 years and a maximum of life in prison
Assault Defense
Putting forth a strong defense against second degree is critical to avoiding a conviction. An assault defense attorney can look at every possible angle to find a defense strategy for their client. They need to give the jury at least a reasonable doubt as to the guilt of the defendant in order to avoid a conviction.
One common defense strategy is to claim self-defense, meaning the assault was justified because the defendant was under threat. With this defense, it is the burden of the defense to show that the defendant believed they needed to use physical force as a means of protecting themselves from harm.
Also, successful defenses are based on the specific charges you’re facing. Depending upon the facts of your case, your attorney may effectively challenge the injury level of your offense and distinguish the “physical injury” versus “serious physical injury” as outlined in New York Penal Law §120.05. There are various types of assault charges that require different tactical approaches.
Then, your attorney can analyze medical records, the duration of treatment, and whether there was any protracted impairment. A compelling argument may exist to support that an accident simply occurred, and the facts may show that you didn’t have the required intent to commit the crime under New York law. Your lawyer may be able to use the facts of your case in your legal defense.
Additionally, sometimes the difference between a “deadly weapon” and a “dangerous instrument” often comes down to whether the item is dangerous by design or by use. Your attorney may be able to demonstrate that, based on the facts in your case, your use of the object was reasonable in the circumstances and not intended to cause serious harm. You may have:
- Had a lawful duty to use the weapon as part of your status as a protected worker
- Your alleged actions may not have caused the injuries
When you partner with an attorney, they can explore all available legal defenses and build a solid defense case. Reach out to an attorney with extensive experience handling second degree assault and a track record of success with these kinds of cases in New York.
FAQs
What Is Second Degree Assault in New York?
Assault occurs when one person intentionally or recklessly causes physical harm or injury to another person. The degree of assault is usually determined by the severity of the injuries associated with the assault and whether or not there were weapons involved. Assault in the Second Degree is a class D violent felony and occurs when there is intentional “serious physical injury” or “physical injury” with a weapon or dangerous instrument.
What Is the Difference Between Second-Degree and Third-Degree Assault?
Assault in the Third Degree is a class A misdemeanor, while Assault in the Second Degree is a class D Felony. Third degree assault involves physical injury and typically no weapon or dangerous implement. Second-degree assault involves either “serious physical injury” or “physical injury” with a weapon or dangerous implement.
Third-degree assault is punishable by up to one year in jail. Second degree assault is punishable by a mandatory two to seven years in a state prison.
What Is an Order of Protection?
In some cases, particularly when the victim of assault is familiar to the perpetrator, part of the criminal proceedings may involve the prosecution asking for an order of protection. If the judge grants the order of protection, it has specific details about what the defendant in the case cannot do regarding the victim.
Often this involves staying away from the victim, their children, and their place of employment. It can also mean moving out if the defendant lives with the victim and paying child support if they have children together. A violation of this order can result in additional charges.
What Is Post-Release Supervision?
Part of a second-degree assault conviction involves post-release supervision that lasts 18 months to three years. The parameters of this supervision vary from person to person but often involve things like regular reporting to your parole officer, drug testing, consenting to searches, and so on.
Hire an Assault Lawyer – Get Help Defending Against Second Degree Assault Charges in New York from the Law Offices of Robert Tsigler, PLLC
If convicted, second degree assault charges can have a devastating impact on someone’s life. From the minimum two years in prison to the societal difficulty that comes with having a criminal record, the consequences of being found guilty of second degree assault can be significant and long-lasting.
Thankfully, you can hire an assault lawyer at the Law Offices of Robert Tsigler, PLLC for reliable assistance. From Staten Island to Manhattan, we fight for our clients throughout New York.
With so much at stake, you aren’t going to want to leave your defense up to just anyone the court assigns. You’re going to need a legal team that’s skilled, experienced, and ready to fight on your behalf. We’re available 24/7, and we understand how to win these complex cases.
Don’t take chances with your legal defense. If you or someone you know needs a dedicated legal defense team, contact us at the Law Offices of Robert Tsigler, PLLC.
