PL § 120.00 Assault in the third degree.

Penal Law (PL) 120.00 Assault in the Third Degree defined. A person is guilty of assault in the third degree when he or she causes physical injury to another person (1) intentionally, (2) recklessly, or, (3) from negligence and the use of a dangerous instrument.

P.L. 120.00 says that 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

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Intentional Assault, PL 120.00 (1)

Intentional assault in the third degree is, generally, causing injury to someone on purpose and it applies to a variety of situations including bar fights, domestic violence, or stranger assaults.

Code: 120.00(1)

Legal definition of PL 120.00 (1): A person is guilty of assault in the third degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person

Penalty: Up to 364 days in jail

Elements of PL 120.00 (1)

For a defendant to be convicted at trial of PL 120.00(1) assault in the third degree, the following must be true:

  1. The defendant did something that caused physical injury to a someone else.
  2. The defendant did so intentionally
  3. The defendant’s conscious objective or purpose was to cause physical injury to the person who was injured

PL 120.00 (1) Intentional Assault in the Third Degree Examples

  • After an argument about politics in a bar, a man punches another man in the face
  • When trying to enter a crowded subway car, a woman is slapped in the face by anther person who thinks the she cut the line causing physical injury. The person who slapped her could be charged with intentionally assaulting her
  • Two drivers get into an argument about who has the right to take an empty parking spot when one driver shoves the other driver onto the ground

Reckless Assault, PL 120.00 (2)

Reckless assault is causing injury because of something reckless that you did. It is essentially the same as an intentional assault except that you are being accused of causing it recklessly, not intentionally. Even though reckless assault may sound less serious than an intentional assault, it carries the same penalties.

Code: PL 120.00 (2)

Penalty: up 364 days in jail

Legal definition of PL 120.00 (2): A person is guilty of assault in the third degree when he recklessly causes physical injury to another person.

Elements of PL 120.00(2)

For a defendant to be convicted at trial of PL 120.00(2) assault in the third degree, the following must be true:

  1. The defendant did something that caused physical injury to a someone else
  2. The defendant did so recklessly

You act recklessly with respect to assault in the third degree, PL 120.00(2) when with respect to physical injury when you

  • engage in conduct which relates or contributes to a substantial and unjustifiable risk that physical injury to another person will happen, AND
  • you are aware of and disregard this risk, AND
  • the risk of such a nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation


PL 120.00 (2) Reckless Assault in the Third Degree Examples

  • A driver gets angry about a car that cut him off and throws a bottle at the car which bounces off the car and strikes a pedestrian causing physical injury. The driver could be charged with recklessly assaulting the pedestrian with the bottle.
  • A man goes to a New Year’s party on the 4th floor of a building and gets so drunk that he drops an empty wine bottle out of the window instead of properly discarding it. The bottle strikes a pedestrian below causing physical injury. The drunk party-goer could be charged with recklessly assaulting the pedestrian below.
  • A person walks into a crowded restaurant and pushes people out of the way causing one of them to fall and sustain a physical injury. The pusher could be charged with assault in the third degree, PL 120.00 (2)

Criminally Negligent Assault, PL 120.00 (3)

Criminally negligent assault is causing injury with a deadly weapon or dangerous instrument due to a degree of negligence that has risen to "criminal negligence" in its nature. More than ordinary negligence is required. Unlike intentional and reckless assault, an object is typically required to have been used.

Code: 120.00(3)

Elements of PL 120.00(3)

For a defendant to be convicted at trial of PL 120.00(3) negligent assault in the third degree, the following must be true:

  1. Physical injury occurred
  2. The defendant caused it with a degree of criminal negligence
  3. The defendant used a deadly weapon or dangerous instrument was used

PL 120.00 (3) Negligent Assault in the Third Degree Examples

  1. A construction worker is moving a large piece of wood violently across a crowded sidewalk, slamming into a pedestrian causing physical injury. Although it was not intentional, he could be arrested for negligent assault, PL 120.00 (3). Even a piece of wood can be called a dangerous instrument in this context because it is capable of causing physical injury.
  2. A driver is looking at his cellphone and drives over a pedestrian's foot causing physical injury. Although not intentional and, debatable, not necessarily reckless, the driver can be charged with negligent assault because the car can be considered a dangerous instrument.

General discussion of New York Assault in the Third Degree, P.L. 120.00

Assault in the third degree is one of the more commonly charged violent offenses in New York. It can be charged in a variety of circumstances including fights with strangers, fights with friends, family, and acquaintances, and fights with authority figures such as police officers, EMT’s, etc. Assault cases, because a physical injury is involved, vary greatly based on how severe the injury is and the motivation behind the attack. So, some of the biggest variables that shape the context of an assault case are the relationship between the people involved, how serious the injury is, the motivation behind the attack, and where the assault happened. One of the most common defenses is self defense which is discussed below.

Relationship of the people involved in the assault case. Sometimes, assault (PL 120.00) can be charged in a fight between strangers. Stranger assaults are viewed with concern by the District Attorney because of the potential for future criminality because of concerns about the defendant’s mental health, possible drug use, or violent nature. When assaults happen between friends, lovers, and family members, the relationship suggests a possible motive (jealously or rivalry) and that there is a possibility that the parties will reconcile afterwards. Assaults against police, EMT’s, transit officials may be elevated to a felony based on the victim’s employment.

Physical Injury. The law defines “physical injury” as impairment of physical condition or substantial pain. Impairment of physical condition is a detectable injury. Under People v. Chiddick, 8 NY3d 445 (2007), “moderate pain” was considered enough for a finding of substantial pain and therefore an injury.

Motive. Although the prosecutor is only required to prove that you intentionally, recklessly, or, in some circumstances, negligently caused the injury, they will often try to figure out the motive. Motive is the motivation behind the attack, or why the attacker assaulted the victim. In bar fights, the thing that caused the assault might be as simple as a spilled drink or more complicated like a long simmering dispute between two people who happened to see each other inside the same bar at the same time.

The Place. Assaults that happen inside a bar/nightclub often involve alcohol, cramped spaces, and dark lighting. Alcohol can affect your judgment, motor coordination, and recollection. If your judgment is off, you may react with violence when, if sober, you wouldn’t have or you may react with too much violence. If your coordination is off, you may use violence against the wrong person. If your recollection has been affected, you may remember going out for a drink and then waking up in handcuffs but nothing in-between.

Transferred intent. With any PL 120.00 (1) assault case, the prosecutor is not required to prove that you intended to cause a physical injury to the person who was injured. For example, if you tried to punch someone but your fist connected with someone else’s body, you could still be arrested and charged with intentionally assaulting the other person under New York’s transferred intent rule. Under New York law, it is not required that the person who is injured be the same person who was intended to be injured.

Self defense. If someone is attacking you or is about to, do you have to take it? No. One of the most common defenses that is raised to the police and, later, in court is self-defense. Unlike in other jurisdictions in the United States, in New York, self defense is an affirmative defense meaning that if you are being arrested for assault, it is your responsibility to claim and prove self-defense and not the prosecutor’s responsibility to disprove it. Under New York law, you may use physical force to the extent reasonably necessary to defend yourself from being assaulted. There is a 2 part test. (1) You must have actually believed that the other person was using or about to use physical force against you and that your own use of force was necessary to protect yourself and (2) a reasonable person in your position knowing what you knew and being in your same circumstance would have believed it was necessary to use self-defense.

P.L. 1200.00 Process through the System

Arrest and Arraignment. After you are arrested and charged with PL 120.00, you must appear in court for an arraignment. An arraignment is your first time in court after arrest and when you can have a lawyer present, plead guilty or not guilty, and when conditions for your release are set. The arraignment may happen about 12-24 hours after you are arrested or, if you are given a desk appearance ticket, you will have to appear in court weeks or over a month later for the arraignment.

Pre-Trial. After you have been arrested and arraigned, you and the prosecutor have different rights that must be respected within a certain amount of time. During this time, you may have to appear in court several times for the enforcement of these rights such as for your right to certain types of information about the government’s case (called discovery), or the prosecutor’s right to bring your case to trial. Because the criminal courts are very busy, it may take months or even more than a year for a PL 120.00 assault case to be brought to trial. During this period of time, your lawyer may be able to get your case dismissed or settled.

Trial. If your lawyer has not been able to get your PL 120.00 case dismissed or otherwise settled, you may face trial. At trial, the prosecutor may call witnesses to convince a jury (or judge) that you did certain things that constituted assault in the third degree, PL 120.00. If your lawyer can convince the jury (or judge) that some of these elements haven’t been made out or that you were defending yourself, you may be acquitted. If not, you may be convicted of PL 120.00.

PL 120.00 Penalties. Assault in the third degree is punishable as a class A misdemeanor which carries up to 364 days in jail, three years of probation, a $1000 fine, and other penalties described below. Because it is a misdemeanor, conviction means a permanent criminal record.

  • Up to 364 days in jail
  • Intermittent jail (such as jail on weekends)
  • Split sentence (combination of jail and probation)
  • Probation for 2 or 3 years
  • Interim probation supervision (for one year but can be longer)
  • Conditional discharge (specified conditions – such as that you must stay arrest free - that must be completed up to 1 year from the sentencing date)
  • Unconditional discharge (no jail, fine, probation, or any other conditions)
  • $1000 maximum fine or double the defendant’s gain from the crime
  • $175 Mandatory surcharge ($180 in a town or village court) (unless restitution is being made)
  • $25 crime victims assistance fee (unless restitution is being made)
  • $50 DNA database fee (a DNA sample will be required if not already on file)
  • Enhanced penalties if a hate crime
  • Collateral consequences
    • Permanent criminal record
    • Housing (public housing could be affected)
    • Immigration (may be a crime involving moral turpitude CIMT)
    • Weapons (may affect your gun license)
    • Employment (conviction may be discovered by current/future employers)
    • Civil liability (conviction may increase civil liability for the same assault)
    • Professional licenses (some professional licenses may be affected)
    • Orders of protection (sometimes called restraining orders)

Small Sample of our P.L. 120.00 Results

  • Manhattan – Client was charged with 120.00 for a violent fight and punching a roommate in the face causing substantial pain and other injuries – Client worked in financial services and a conviction could have resulted in serious employment consequences – Result: Case dismissed, record sealed (not visible during a criminal history record search), no criminal record. (3372)
  • Manhattan – Client was arrested for 120.00 for pushing and scratching a coworker – client worked in a highly regulated field and conviction to PL 120.00 (a violent misdemeanor offense) could have led to employment problems – Result: case dismissed due to a legal technicality we noticed (3344), case sealed (not visible during a criminal history record search)
  • Queens – Client was arrested for violently hitting another person over a property related dispute – the District Attorney aggressively pursued this matter and charged PL 120.00 – Result: We successfully negotiated a deal to have the case dismissed in exchange for a short period of good behavior, no criminal record, case sealed (not visible during a criminal history record search) (3259)
  • Brooklyn – Client arrested for assaulting an acquaintance who was arrested too and charged with PL 120.00. Client had a bad situation in court prior to meeting with us and allowed the case against the person he allegedly assaulted to be dismissed while his case was not dismissed. He was still being prosecuted for merely defending himself. Result: Case dismissed, record sealed (not visible during a criminal history record search). (3260)
  • Manhattan – Client was arrested for punching a stranger in a bar. Client held a very sensitive job in the legal industry and Client’s employer was aware of the arrest and wanted it dismissed. Result: Although the prosecutor pushed for a conviction for several months of hard-fought litigation, case successfully dismissed when we noticed a legal technicality, case dismissed, case sealed (not visible during a criminal history record search) (3177)
  • Queens – Client was arrested and charged with PL 120.00 following a verbal dispute that turned physical when client allegedly punched the victim in the body and resulted in cuts and substantial pain. Client is in the military and faced sever repercussions if convicted. Result: PL 120.00 and related criminal charges dropped, reduced to a non-criminal violation, small fine, no criminal record (not visible during a criminal history record search). (3369)

Contact the Law Office of Lance Fletcher at 212-619-3900 for a PL 120.00 case evaluation.

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