Misdemeanor Vs. Felony Assault: Key Differences

At the Law Office of Benjamin Greenwald, we know that not every charge is legitimate, and we understand that even individuals who have made mistakes are entitled to a robust defense. For more than 25 years, Attorney Greenwald has worked to defend the rights of individuals navigating the criminal justice system. Whether you have been charged with a misdemeanor offense or are facing more severe charges for felony assault, when you work with our office, you can rest assured that each member of our staff will be dedicated to protecting your rights and defending your interests. To find out whether we may be a good fit, call (845) 567-4820 today and request your free initial consultation.

Is Assault Always a Felony in New York?

Both assault in the second degree and assault in the first degree are felony assault charges in New York. Third-degree assault, on the other hand, is a class A misdemeanor. Several factors can determine which charges prosecutors deem appropriate in a particular case, and a complex set of related assault offenses may be charged under specific conditions. Because New York assault laws can be so involved, individuals accused of both felony assault and misdemeanor offenses in the assault category often prefer to work with a defense attorney.

Summary of Misdemeanor Assault and Felony Assault

New York assault charges range from Class A misdemeanor assault in the third degree to felony assault in the first and second degrees, with the applicable charge depending on factors such as physical injury, intent, weapons, alleged victim status, and surrounding circumstances. 

• New York Penal Law § 120.00 defines assault in the third degree as a Class A misdemeanor involving physical injury caused intentionally, recklessly, or through criminal negligence involving a dangerous instrument or deadly weapon. 
• New York Penal Law §§ 120.05 and 120.10 establish numerous circumstances for second-degree and first-degree felony assault, including serious physical injury, dangerous instruments, deadly weapons, depraved indifference to human life, and certain aggravating circumstances. 
• New York Penal Law provides relevant definitions concerning physical injury, serious physical injury, deadly weapons, and dangerous instruments that can affect the classification of an assault charge. 

The Law Office of Benjamin Greenwald provides criminal defense services for individuals facing misdemeanor and felony assault charges in New York.

What Counts as Misdemeanor Assault in New York?

In New York, most forms of assault are considered felonies. However, assault in the third degree is instead a class A misdemeanor. Misdemeanor assault’s distinction from the more serious felony charges hinges primarily on the extent of the physical injuries sustained by the victim. Additional potential charges include harassment in the second degree for the least severe instances. 

Definition of Offense vs. Allegation in a Particular Case

Notice that we say “victim” here, rather than “alleged victim”; that is because both the intent and the physical injuries are part of the definition of the offense, rather than a specific allegation made in a particular case. In fact, in many instances it is precisely the definitional requirement that an individual charged with third-degree assault intentionally caused physical injury to another person that a criminal defense lawyer will use to cast doubt on the prosecution’s proposed interpretation of evidence. Depending on the case, a defense attorney may be able to gather and present contrasting evidence to show that the alleged victim never actually suffered the injuries claimed, that the defendant was not the party responsible for causing those injuries even though the injuries themselves were real, or that the defendant did physically harm the victim, but only by accident.

Misdemeanor Assault Without Intent

When there is harm, but it is not committed intentionally, there are still three alternative pathways by which an individual may be convicted of third-degree assault under New York Penal Law § 120.00. The first applies when the physical injuries were intended for someone other than the person actually injured in the specific case; the statutory text specifies acting with “intent to cause physical injury to another person” but expressly considers the assault charge to apply when the person injured is a third party instead of the originally intended victim. For this reason, arguing that the defendant in a particular case was really trying to hurt someone other than the alleged victim in that case will not be an effective defense under PEN § 120.00(1).

The two remaining pathways are related in that both are predicated on the accused person’s failure to take a necessary degree of care, rather than his or her intention to cause harm. Recklessly causing physical injury to another person can qualify as misdemeanor assault under PEN § 120.00(2), and so can causing physical injury to another person by means of a dangerous instrument or deadly weapon while acting “with criminal negligence.” Defense in third-degree assault cases based on allegations of reckless conduct or criminal negligence may center on whether the defendant’s conduct met the legal definition for recklessness or criminal negligence, whichever is alleged in the particular case. An attorney from the Law Office of Benjamin Greenwald may be able to explain more in a private consultation.

What Is Felony Assault in New York?

The Consolidated Laws of New York include statutes for both second-degree and first-degree felony assault. The circumstances under which an alleged crime may qualify as felony assault are significantly broader than those that govern New York misdemeanor assault charges, but one of the primary distinguishing differences is the “serious physical harm” designation. More than just a descriptive term, under New York’s Penal Law, serious physical harm constitutes a defined category of harm. An individual’s injury or injuries must meet legally specified criteria to be considered “serious,” so the quantifiable characteristics of the injuries alleged in a particular case can be a critical factor in determining whether the prosecution can secure a conviction and, of course, how the legal strategy for the defense will take shape.

Physical Injury: New York Legal Definition

Even the term physical injury has a more precise legal meaning within New York’s Penal Law than people not actively involved in law or an adjacent profession might expect. New York PEN § 100.00(9) defines physical injury as either of the following:

• Substantial pain
• Impairment of physical condition

Many bodily harms that result in the impairment of an individual’s physical condition will also cause significant pain, so it is not uncommon for cases in which the allegation is a third-degree assault to involve both. However, either item by itself will satisfy the requirements for the legal definition of physical injury. Individuals accused of misdemeanor assault in New York should keep in mind that the question of whether the alleged victim has suffered physical injury may or may not be central to an effective defense; that is, prosecutors must always prove physical injury to secure a misdemeanor assault conviction, but the defense does not necessarily have to challenge the degree of pain or impairment alleged to achieve a favorable outcome. Consider discussing the particulars of your case with a New York assault lawyer.

What Is the Definition of Serious Physical Injury Under New York Law?

The legal definition of serious physical injury in New York is stricter than you may initially expect. To meet the definition of serious physical injury required for a second-degree assault conviction, an injury must meet at least one of the following conditions:

• The injury is fatal, or poses a substantial risk of fatality
• The injury results in a serious and protracted disfigurement
• The injury results in long-term loss or impairment in the function of a bodily organ
• The injury results in long-term impairment to the injured person’s health

Any one of these conditions will satisfy the criteria for serious physical injury, but none of them will be sufficient on its own to show that the injury was caused by second-degree felony assault.

Understanding Second-Degree Assault Charges in New York

The range of situations that may qualify for second-degree felony assault charges in New York is significantly wider than the relatively short list that may constitute third-degree assault. An individual may be convicted of felony assault in the second degree when prosecutors can show that the defendant intentionally caused serious physical injury to another person, or caused serious physical injury to a third party while acting with the intent to cause serious physical injury to someone else. However, the second-degree assault definition is also met when one individual acts with intent to cause physical injury to another person and actually inflicts physical injury on either the intended victim or a third party by means of a dangerous instrument or a deadly weapon. In some cases, injury to an officer of the law while they are trying to apprehend you may also be charged as assault. Both dangerous instruments and deadly weapons are subject to their own legal definitions, spelled out in PEN § 10.00(13) and PEN § 10.00(12), respectively.

Severity of Injury and Role of Alleged Victim

In some situations, not just the degree of harm but the status or role of the alleged victim may escalate assault charges from misdemeanor to felony. Second-degree assault charges may apply when the physical injuries alleged in the case do not meet the higher standard for “serious” physical injury set out in PEN § 10.00(10), but the injuries are the result of the defendant’s alleged attempts to prevent someone employed in any of several public service roles from carrying out his or her duties.

Use of a Dangerous Instrument or Deadly Weapon

Similarly, causing serious physical injury without the intent to do so may result in a second-degree assault conviction if prosecutors can show the defendant acted recklessly and that the injuries were caused by a dangerous instrument or deadly weapon. The degree of intentionality can also come into play for certain situations where the alleged victim is a minor under 11 years of age, and the defendant is a legal adult, or when the alleged victim is 65 years or older, and the defendant is at least 10 years their junior. There are a handful of even more specific situations that may meet the complex set of criteria for second-degree assault under PEN § 120.05, so individuals charged with this class D felony may find it helpful to talk with a defense lawyer to clarify the exact nature of the accusations filed against them.

What Counts as First-Degree Assault?

New York PEN § 120.10 provides a few possible definitions of assault in the first degree. Meeting the criteria for any of them will generally be grounds for conviction under state law.

Intent To Cause Serious Injury

The first definition of first-degree assault relies on the same type of “with intent to cause” stipulation as both misdemeanor and class D felony assault. Where third-degree assault includes “intent” but only requires that the intent be physical injury, and second-degree assault applies the intent requirement to serious physical injury or to physical injury caused by use of a dangerous instrument or deadly weapon, first-degree assault under PEN § 120.10(1) starts with the intent to cause serious physical injury and also requires the use of a dangerous instrument or a deadly weapon.

Intent To Amputate, Disfigure, or Disable

First-degree assault as defined under PEN § 120.10(2) dispenses with the weapons requirement and narrows the conditions for qualifying physical injuries to amputation or disabling of some part of the body, or to permanent, serious disfigurement. The intent under 120.10(2) must be matched to the severity of the physical injury. However, just as with the lesser degrees of assault, prosecutors only need to show that the intent to cause this type and degree of harm was present, not that the alleged victim in the case was the defendant’s originally intended target.

Depraved Indifference to Human Life

The “reckless” conduct that can sometimes meet the criteria for second-degree assault under New York law also finds its analogue in first-degree assault, and in keeping with the escalating charges, the bar for recklessness that would qualify for charges of assault in the first degree is higher than that applied to the lesser, class D felony charge. PEN § 120.10(3) provides for a first-degree assault conviction when prosecutors can show that an individual caused serious physical injury to any other person by recklessly engaging in conduct that created a “grave risk of death” to someone other than the actor, under circumstances that evinced “a depraved indifference to human life.” Depraved indifference is a specific type of mental state, as interpreted by New York courts, that implies a degree of culpability beyond ordinary carelessness. Often, when a first-degree assault charge is tried under PEN § 120.10(3), a defense attorney may seek to undermine the prosecution’s account of the defendant’s state of mind, even if the outcome of physical injury to another person is not in dispute.

While Committing Another Crime

One way that individuals having their first encounters with New York’s criminal justice system may sometimes be surprised is by the extent to which “aggravating factors” can compound and escalate charges. Causing serious physical injury to another person, even unintentionally, can be a first-degree assault resulting in a class B felony conviction if the injury is the result of an attempt to commit or flee the scene of a separate felony offense and the victim is not an accomplice in the crime or attempt. To secure a 120.10(4) conviction under these terms, prosecutors will need to prove not only the serious physical injury but the original felony or attempted felony that served as the alleged occasion for the incident prosecutors frame as an assault.

Other Categories of Assault in New York

Besides assault in the first, second, and third degrees, there are a few distinct categories of assault folded into Article 120 of the Penal Law. Examples include reckless assault of a child by a day care provider, which is a class E felony under PEN 120.01, reckless assault of a child (which applies to a narrower range of injuries, but does not require the accused to be a day care provider), a class D felony under 120.02, gang-related assault crimes, second-degree, first-degree, and aggravated vehicular assault (ranging from class E to class C felony charges as the severity escalates), and some offenses involving assault on various public servants. If you are accused of any form of assault in New York, understanding the exact charges will be critical in developing an effective defense strategy, so consider reaching out to an attorney without delay.

Talk With a New York Assault Lawyer

Being charged with any crime in the state of New York is a serious matter. The state considers any form of assault a type of violent crime, and district attorneys can be quite aggressive in pursuing charges even for misdemeanor offenses. A conviction for felony assault, meanwhile, can substantially alter the course of an individual’s life. If you have been accused of any type of assault in New York, you must understand the details of the specific charges filed in your case and what they can mean for your legal options. Call the Law Office of Benjamin Greenwald today at (845) 567-4820 to schedule a private consultation.

New York Misdemeanor And Felony Assault FAQs

The following FAQs address common legal questions concerning misdemeanor assault, felony assault, and New York Penal Law.

What Is Misdemeanor Assault In New York?

Misdemeanor assault in New York generally refers to assault in the third degree under Penal Law § 120.00, a Class A misdemeanor involving legally defined physical injury. New York Penal Law § 120.00 provides multiple pathways to third-degree assault, including intentional conduct, reckless conduct, and criminal negligence involving a dangerous instrument or deadly weapon. The prosecution must establish the applicable statutory elements for a conviction.

What Is Physical Injury Under New York Law?

New York Penal Law defines physical injury as substantial pain or impairment of physical condition for purposes of determining whether statutory assault elements are satisfied. The definition appears in Penal Law § 10.00(9), and either substantial pain or impairment of physical condition can satisfy the statutory definition. Physical injury therefore does not necessarily require both substantial pain and impairment of physical condition.

What Is Serious Physical Injury Under New York Law?

Serious physical injury under New York Penal Law involves harm resulting in fatality, substantial risk of fatality, serious protracted disfigurement, or long-term impairment. Penal Law § 10.00(10) establishes the statutory concept of serious physical injury relevant to felony assault charges. The distinction between physical injury and serious physical injury can affect whether conduct falls within third-degree, second-degree, or first-degree assault provisions.

What Is Second-Degree Assault In New York?

Second-degree assault under New York Penal Law § 120.05 is a felony offense involving circumstances such as serious physical injury, the use of certain types of weapons, reckless conduct, or protected classes of alleged victims. New York second-degree assault encompasses multiple statutory circumstances, including intentional infliction of serious physical injury and certain injuries involving dangerous instruments or deadly weapons. Additional provisions address particular public servants, minors, older individuals, and other circumstances.

What Is First-Degree Assault In New York?

First-degree assault under New York Penal Law § 120.10 is a felony offense involving particularly serious circumstances, such as specified intent, permanent disfigurement, amputation, or depraved indifference. New York first-degree assault can also arise when serious physical injury occurs during an attempt to commit or flee from a separate felony under specified statutory conditions. The applicable subsection of Penal Law § 120.10 determines the elements prosecutors must establish.

Can Reckless Conduct Result In an Assault Conviction In New York?

Third-degree assault may involve recklessly causing physical injury, while second-degree and first-degree assault provisions establish additional requirements concerning serious physical injury, weapons, or mental states. The legal meaning of recklessness depends on the specific statutory provision and circumstances of the alleged conduct.

What Other Assault Offenses Exist Under New York Law?

New York Penal Law Article 120 includes assault offenses beyond first-, second-, and third-degree assault, including child assault, gang-related assault, vehicular assault, and assault involving certain public servants. These offenses can carry different classifications depending on the statutory elements and circumstances. Determining the exact New York assault offense is important because different statutes establish different requirements and potential classifications.

How Can The Law Office Of Benjamin Greenwald Assist With Assault Charges?

The Law Office of Benjamin Greenwald provides criminal defense services for individuals facing misdemeanor or felony assault charges in New York. Attorneys at the Law Office of Benjamin Greenwald could help clarify the specific allegations, applicable New York Penal Law provisions, and potential legal options. Consider visiting with an experienced attorney at the Law Office of Benjamin Greenwald to learn more about available legal options.