Assault in the 3rd Degree – NYS Penal Law § 120.00

January 21, 2015

New York Penal Law Article 120 addresses assault and assault related offenses.  It is an extensive article, often with only subtle distinctions between offenses, and a particular criminal act could possibly fall under the provisions of more than one offense.

This entry (and the two following it) are directed primarily at the seemingly more well-known offenses of Assault in the 3rd Degree (PL 120.00, a class A misdemeanor), Assault in the 2nd Degree (PL 120.05, a class D violent felony) and Assault in the 1st Degree (PL 120.10, a class B violent felony).

NY Penal Law § 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 dangerous instrument.

Assault in the third degree is a class A misdemeanor.

A person can be guilty of Assault 3rd if he or she injures someone else while possessing any one of three culpable mental states; they have to either: 1) intend to cause the injury, 2) recklessly cause the injury, or 3) act with criminal negligence in causing the injury.

What the hell does any of that mean?  Oh, don’t you worry!  We lawyers love definitions.  We need definitions to get through the day!  Definitions are like our morning coffee, can’t think straight without one!  So these mental states have been “clearly” defined in the Penal Law to avoid any confusion… (yea, right…).  Penal Law § 15.05 defines the terms “intentionally,” “recklessly,” and “criminal negligence” in perfect legalese.  So I’ll spare you that pain and just paraphrase:

Intentionally – you act intentionally when it is your conscious objective to cause a certain result or engage in certain conduct.

Example: you intend to punch that person right in the jejunum who just insulted your mother.

Recklessly – you act recklessly when you realize what you’re doing is probably dangerous, unjustifiable and unreasonable, but you go ahead and do it anyway.

Example: You knew it wasn’t a smart idea to twirl around as fast as you could with your fists outstretched on a busy Manhattan sidewalk, but you went ahead and did it anyway and your left fist caught a pedestrian in the eye.    

Criminally Negligent – you are criminally negligent when you do something really dangerous to someone else because you fail to recognize just how dangerous it is.

           Example: Although it certainly should have, it never occurred to you that it might be dangerous to twirl around as fast as you could with a baseball bat in your hand on a busy Manhattan sidewalk; imagine your surprise when that bat caught a pedestrian in the eye!   

If the prosecution can establish that you did, in fact, possess one of these three culpable mental states at the time of your offense, they then have to prove that the victim suffered an actual physical injury, as opposed to just hurt feelings.  And of course “physical injury” is also defined!

NY PL § 10.00 (9).  “Physical Injury” means impairment of physical condition or substantial pain.

            So while common sense says an injury is an injury, often times in an assault trial the issue of whether a “physical injury” actually exists can be a question of fact for the jury to decide!  Simply shoving someone out of the way (without an injury) is not assault.  Even if you physically knock someone to the ground but they suffer no physical injury, not an assault.  Of course, I don’t recommend either course of action, and each one can result in you being charged with a different offense.  So it’s really best just not to touch anyone who you shouldn’t be touching.  My $0.02.  But at least now when someone tells you “that’s assault, brutha!,” you might have a better idea if it really is.

            Finally, with respect to PL 120.00(3), criminally negligent assault in the 3rd degree, the prosecution has to prove that the “physical injury” was negligently caused by your use of a deadly weapon or dangerous instrument.  What the hell is the difference between a deadly weapon and a dangerous instrument?!  Boom! Definition!

NY PL § 10.00 (11).  “Deadly weapon” means any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade, knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles, metal knuckles.

            Pretty specific list!  So basically, if whatever implement may have allegedly been used in your offense isn’t on that list, it’s not a deadly weapon!  But wait! There’s more!

NY PL § 10.00 (12).  “Dangerous instrument” means any instrument, article or substance, including a “vehicle” as that term is defined in this section, 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 injury.

            I could devote a whole separate blog entry to the definitions of “deadly weapon” and “dangerous instrument,” but suffice to say those two definitions together are pretty inclusive.  So theoretically, you fold up a piece of paper well enough and swing it at someone, you could be facing the wrong end of an Assault 3 charge, or worse!  By the way, the “worse” will be addressed in following articles.

Despite any humor I may have attempted (but most likely missed) in this article, Assault in the 3rd degree is a very serious criminal offense, a conviction of which could put you in county jail for up to one (1) year and possibly leave you on the hook for restitution of the victim’s medical bills.  If you have been charged with Assault 3 or any other criminal offense, call the experienced Poughkeepsie criminal defense attorneys at Catalano & Carpenter LLP today at (845) 454-1919 to schedule a free consultation, or contact us through