In New York, the crime of assault in the second degree is found in NY Penal Law § 120.05. Assault in the second degree is a class D felony, which is punishable by up to 7 years in prison. There are three general factors which rase an assault from an assault in the third degree to an assault in the second degree: Serious Injuries, weapons used, or an official, elderly or minor victim. The presence of any one of these factors will raise an assault to an assault in the second degree. The presence of more than one of these factors will lead to more serious charges.
Serious Injuries
Assault in the second degree can be charged where “serious physical injuries” resulted from the assault, and the assault was carried out with the intent of causing such injuries. The law defines “serious physical injuries” as “a physical injury which creates a substantial risk of death, or which causes death or serious protracted disfigurement, protracted impairment of health or protracted loss or impairment of any bodily organ.” (Penal Law § 10.00(10)). A cut or bruise would not qualify as a serious physical injury, but a broken bone would.
Weapons Used
Assault in the second degree can also be charged where a “deadly weapon” or “dangerous instrument” is used. A dangerous instrument is defined broadly at Penal Law § 10.00(13) to include any object that could be used to cause serious physical injury. The use of the object does not need to actually cause a “serious physical injury.” If a person intends to cause a physical injury and causes even a minor physical injury with a weapon, they are guilty of second degree assault.
Official, Elderly or Minor Victim
NY Penal Law § 120.05 states that the assault of an official is a second degree assault where the assault on that official intends to prevent him from performing his lawful duty. The list of officials includes police, emts, firefighters, and train operators. The full list is found at Penal Law § 120.05(3) and (11). Assault on a victim younger than 11 or older than 65 may qualify as second degree assault. Causing serious physical injury to such a person will result in more serious charges.
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