“The Requirement of a Physical Injury in Assault Cases under the NYS Criminal Law,” by Andrew J. Schatkin

“The Requirement of a Physical Injury in Assault Cases under the NYS Criminal Law,” by Andrew J. Schatkin

I present here an analysis and explanation of the law with respect at least in the state of New York of the requirements of a physical injury in assault cases.

One of the most frequent and common cases the criminal practitioner is confronted with, particularly on the misdemeanor level (PL 120.00, assault in the third degree) is the assault charge. The context may be a husband-wife domestic verbal dispute which has unfortunately escalated into physical combat; a fight between friends; a dispute between strangers; or even in the context of resisting arrest an alleged attack on a police officer (assault in the second degree—PL Sec 120.05(3).

Whatever the context, the police are summoned by the injured wife, friend, or stranger, and the client is confronted by either a petty charge of assault in the third degree, bringing in its wake possible incarceration of up to one years, or if the attack was on a police officer, bringing with a charge of assault in the second degree, PL 120.05, a class D felony, with far more serious consequences particularly for the client who is a predicate felony offender that is one previously convicted of a felony.

Hence the criminal practitioner whose counsel is sought by a client so charged, whether by misdemeanor information or indictment, has a grave responsibility. It is true that in the charge of assault the client is entitled to a jury trial. Trial however is always a risk and if a way may be found to exonerate one's client and avoid trial, this path to victory must be explored by defense counsel and thus the following analysis is commended to your attention. Assault in the third degree and assault in the second degree, if the assault is on a police officer, both require that for the assault to pass legal muster there must be showing of a physical injury by the people. Section 10 of the penal law under the term definitions (10, 9) states that a physical injury, means an impairment of the physical condition or substantial pain.

The courts of this state, taking these sections together, have been most careful to define what constitutes a physical injury requiring an objective level of what constitutes a physical injury meaning to exclude such things as petty slaps, shoves, kicks and even punches. If s certifiable physical injury is not shown, as required by law, it is the position of this writer that the information or indictment should be dismissed under the law. If the accusatory instrument is not dismissed, the issue is assuredly preserved for appeal. In any event if the case does not go to trial, the issue of an objective physical injury is an issue for the fact finder and if the jury is rightly charged on this rule, the case may still be won for the defense.

The leading case is Matter of Philip where a juvenile appealed from an order of the appellate division, first department which affirmed an order of the Bronx County Family Court that the appellant committed an act which, if committed by an adult, would constitute the crime of assault in the third degree and so adjudicated the appellant a juvenile delinquent. It was shown at trial that the appellant twice hit the respondent in the face causing him to cry, causing pain, and causing red marks. The trial court found the respondent suffered substantial pain. The appellate division, first department affirmed. The court of appeals held that generally the substantial pain necessary to establish assault in the third degree is question for the trier of fact but nevertheless there is an objective level below which the question is one of law and the charge should be dismissed. The court concluded that the unspecified pain of the respondent, his crying, and the red marks, failed to establish substantial pain beyond a reasonable doubt and reversed.

Similarly in People v. McDowell, which involved an assault on a police officer under PL 120.05, the court of appeals in this earlier case held that the incidental reference to a black eye without any development of its seriousness, such as swelling or suggestion of pain, was insufficient to sustain the conviction of assault in the second degree on a police officer. The court held there was insufficient showing of a true physical impairment. See also People v. Jiminez, where a one-centimeter cut about lip proved neither substantial pain or a physical impairment); Application of Derrick M (appellant struck respondent with a chain; respondent's rib cage became black and blue but there was no bleeding or medical attention given, held no statutory physical injury). See also Matter of Edward B; People v. Chandler; People v. Ciccari; People v. Brown; People v. Melcherts; People v. Tabachnik; People v. Contreras; People .v Reed; People v. Jackson; People v. Oquendo; and Matter of Antonio J.

It is clear from this brief summary of some relevant case law that the courts of this state, including the court of appeals, the appellate divisions, and the lower trial courts, require an objective level of injury to sustain an assault charge. Hence counsel, when confronted with a client charged with assault or kindred cases and crimes requiring a physical injury as defined in Sec. 10 of the penal law, should first examine the misdemeanor or felony complaint. If, for example, punching with a black and blue mark resulting is alleged it is most likely under the case law that the pleading will be dismissed. If the complainant was hospitalized, the hospital record should be immediately be obtained to determine the extent of injuries, if any. Perhaps the complainant was only taken to the emergency room and not admitted to the hospital. In any event even if the complainant was treated at the hospital, there still may be no true physical injury whether physical impairment or substantial pain as required by statute.

Where there is a statutory physical injury as a question of law, counsel if not successful in dismissing the misdemeanor, information, or indictment, may yet win on this issue at trial or appeal. Thus, the careful thoughtful and well-informed defense counsel may succeed on this ground where victory did not seem possible at the outset.

This essay is taken, with alterations and modifications, from my book Select Legal Topics, pp. 112-114, pub. by The University Press of America, 2011. Full citations and the entire essay where sections are omitted in this form of the essay can be found on pp 112-14 of the text.