Second Degree Assault – Subsection Three: NY Penal Law 120.05(2)

Assault in the Second Degree, New York Penal Law 120.05(2), is not merely a felony, but identified statutorily in New York Penal Law 70.02 as a “violent offense.” Therefore, barring exceptional circumstances, the criminal judge you stand before in any borough of New York City or the Hudson Valley will incarcerate you upon your plea and conviction. Will the District Attorney of Queens or New York County recommend, and will a judge in Westchester or Dutchess County agree, to imprison you for two, four, or seven years? While many factors will come into play, the skill, experience and advocacy of your criminal lawyer can make the difference between exoneration, a conviction to a lesser crime, articulating exceptional circumstances and, in the worst scenario, spending years in prison no matter if you previously had a pristine record. Simply, with so much at risk, retaining the right criminal lawyer to challenge your arrest for New York Penal Law 120.05(2) cannot be overstated.

Second Degree Assault: Elements of New York Penal Law 120.05(2)

There are many different subsections or ways to commit Assault in the Second Degree. The second subsection of Second Degree Assault, New York Penal Law 120.05(2), is essentially aimed at addressing cases where the accused allegedly used a weapon in the course of the assault to cause a physical injury. Like Subsection one of Assault in the Second Degree, NY Penal Law 120.05(2) considers an aggravating factor along with what would otherwise be class “A” misdemeanor Assault in the Third Degree, NY Penal Law 120.00(1). Where the aggravating factor raising the misdemeanor crime to a class “D” violent felony is the increased nature of the injury from physical to serious physical, in the case of subsection two, the aggravating factor to elevate the offense to the felony of PL 120.05(2) is the use of a weapon.

• New York Assault Information: Felony and Misdemeanor Assault Crimes

Looking at the Second Degree Assault statute, you are guilty of Assault in the Second Degree pursuant to PL 120.05(2) if with the intent to cause a physical injury – something as relatively insignificant as redness and swelling – and you do so to your intended victim with the assistance or through the use of a dangerous instrument or deadly weapon, you violated the statute and face a two year minimum and seven year maximum term of prison.

Second Degree Assault: Important Terminology Relevant to NY Penal Law 120.05(2)

As with the first subsection of Second Degree Assault, there are clearly specific terms used here that you should examine with your criminal lawyer and Assault defense attorney. These terms, “deadly weapon” and “dangerous instrument,” seem to describe the same thing on the surface, but they cover two very different kinds of objects and have their own special definitions in the New York State Penal Law.

• Assault in the Third Degree: New York Penal Law Section 120.00
• Assault in the Second Degree: New York Penal Law Section 120.05
• Assault in the First Degree: New York Penal Law Section 120.10

Dangerous Instrument Any “instrument, article or substance…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” is deemed a “dangerous instrument.” What this means is that anything can be a “dangerous instrument” or a weapon for these purposes if the circumstances in which it is used demonstrate that it can cause death or serious physical injury. For example, a bowling pin being used at a bowling alley for its intended use – to knock down with a bowling ball – is not a dangerous instrument. However, if a person uses that same bowling pin to swing and strike someone in the head, it is quite clearly a “dangerous instrument” for these purposes, since there is no question that it could cause serious injury or even death when used that way. The same could be said of all kinds of items, even a wall or a boot. It’s important to reiterate that the person accused need only have caused ordinary physical injury, which relatively low threshold includes substantial pain, not serious physical injury – the item need only be capable of causing serious physical injury.

Deadly Weapon Under the New York State Penal Law, “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, or metal knuckles.” This definition attempts to cover two very different categories of items. The first is a firearm that is operable and capable of killing or seriously injuring a person. The second is a list of items that the Penal Law is saying are weapons by definition, regardless of how they’re used or what shape they’re in. These items are basically things that the legislature has determined there is no legitimate use for other than as an unlawful weapon (even if they are incorrect, but that is an argument for another day). This list includes some expected items like switchblades and metal knuckles, as well as some lesser-known items like gravity knives (which one can buy at hardware store for legitimate purposes), blackjacks, and billies. Its worth noting that should you possess any of these per se weapons, the District Attorney can charge you with violating New York Penal Law 265.01(1), Fourth Degree Criminal Possession of a Weapon, irrespective of whether you are also charged with Second Degree Assault.

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If instead of using a fist to punch someone and cause a relatively minor injury, you cause that same injury by using just about any item, from a butter knife and belt to an iPhone and firearm, you should expect to find yourself standing before a criminal court judge with your attorney facing arraignment, and a frightening future, charged with Assault in the Second Degree, New York Penal Law 120.05(2).

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When confronted with the prospect of incarceration and arrest, indictment or trial, for a violent felony, seize any and all opportunities to push back against the allegations and present the strongest defense. When there is no substitute for experience, knowledge and advocacy, the criminal defense team that is ready and prepared to protect you now and in the future is comprised of the New York criminal lawyers and former Manhattan prosecutors at Saland Law.

Call the New York Assault defense lawyers and former Manhattan prosecutors at (212) 312-7129 or contact us online today.