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Assault in New York State

Posted by Arthur R. Frost | Jul 09, 2018 | 0 Comments

Assault charges can be very serious. In the state of New York, there are three levels of criminal assault someone may be charged with. The degree of assault is dependent on the facts and circumstances surrounding the alleged incident. These three types of assault charges are discussed below.

Assault III (Penal Law 120.00)

Typically, third-degree assault involves:

  • An intent to cause physical injury to another, and
  • Causing such an injury.

There are other ways to commit Assault III (ex., reckless assault or criminally negligent assault with a weapon). Assault III is a class A misdemeanor, punishable by a maximum of one year of incarceration.

Assault II (Penal Law 120.05)

Assault II is a class D violent felony punishable by a determinate term of incarceration in state prison anywhere from two to seven years. Second-degree assault requires:

  • An intent to cause serious physical injury to another, and
  • The injury occurs.

Serious physical injury” is defined as an impairment of one's physical condition that creates either a substantial risk of death, or death, serious and protracted disfigurement, or the impairment of health or function of any organ in the body.

A person could also be charged with second-degree assault if the following elements have been met:

A “deadly weapon” is "any loaded weapon from which a shot, readily capable of producing death or other serious physical injuries, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, or metal knuckles."

A "dangerous instrument" is "any instrument, article or substance, including a ‘vehicle' … which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injuries."

In this type of second-degree assault, only “physical injury,” which means impairment of a physical condition or the infliction of substantial pain.

Finally, preventing any of the following employees from performing their legal work related duties is also a second-degree assault:

  • Peace officer,
  • Police officer,
  • Prosecutor,
  • Registered nurse,
  • Licensed practical nurse,
  • Public health sanitarian,
  • Sanitation enforcement agent,
  • City sanitation worker,
  • Firefighter,
  • Emergency medical service paramedic or technician,
  • Medical or emergency room related personnel,
  • City marshal,
  • School crossing guard,
  • Traffic enforcement officer, or
  • Traffic enforcement officer.

There are also other, less common ways to commit Assault II.

Assault I (Penal Law 120.10)

Assault I is a class B violent felony punishable by a determinate term of incarceration in state prison anywhere from five to twenty-five years. The most common ways to commit Assault in the first degree are:


  • while committing another felony, or while fleeing from committing another felony
  • causing serious physical injury to another person who is not a participant in the other felony

The definitions of “serious physical injury," "dangerous instrument" and "deadly weapon" used in Assault in the second degree also apply to Assault in the first degree.

Other Consequences of an Assault Conviction

Apart from possible incarceration, someone convicted of Assault in the first or second degree (or an attempt to commit them) will face the loss of certain rights including voting and the ability to hold a professional license, such as required for doctors, nurses, realtors, etc. Additionally, the person convicted would lose the right to possess a firearm under federal law.

The court will also likely issue an order of protection. Under certain circumstances, someone who receives an order of protection will be prevented by federal law from possessing or owning a firearm.

If You Are Facing Assault Charges

If you are facing assault charges, contact the firm of Frost & Kavanaugh. We have extensive experience representing people on criminal charges. Our attorneys are familiar with potential defenses you may have, including self-defense and defense of others. Oftentimes we can negotiate a disposition - without exposing you to the dangers and risks of a trial - which will involve a reduction of the charges and avoidance of any incarceration. But if not, we won't hesitate to litigate criminal cases, where appropriate. Contact our office to set up a consultation on your assault case today.

About the Author

Arthur R. Frost

Art graduated from Thomas More College in Merrimack, NH in 1991 with a B.A. in Philosophy, and graduated from Gonzaga University School of Law in Spokane, WA in 1995. He was admitted to practice in all New York State Courts and the United States District Court for the Northern District of New York in 1996. He w...


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