Gang Assault in New York

Potentially, a wide range of conduct can result in charges for first or second-degree gang assault in New York. That’s because the elements required to be charged under the relevant codes in New York do not require any gang affiliation.

For example:

A fight in a bar resulting in an injury to a third person, in which you and two or more of your friends are involved, can result in such charges being filed against you and your friends. Or consider a situation in which you and a couple of companions are on a subway platform, and a disagreement arises with another group of people.

If that disagreement develops into a fight, and a member of the other party, a bystander, or even a member of your own party is injured, the same charges could apply to your conduct. And of course, a fight or an attack that is inspired by gang activity and which results in physical injury very likely certainly bring such charges.

How to determine if it is a Gang Assault?

The one additional required elements necessary to make each of these scenarios apply to the gang assault codes is your intent: Did you intend to cause harm or serious harm to another? We’ll discuss each element of both the first-degree and second-degree gang assault codes and what a prosecutor must prove to sustain a charge under each code in the section that will follow.

This article is concerned with the New York Penal Law with respect to first and second-degree gang assault.

New York Penal Law § 120.07

Covers gang assault in the first degree the elements of which are that you have the intent to cause serious physical injury to another person and that you, and two or more people who are actually present with you, do in fact cause such injury, either to the intended person or to some third party.

Penal Law §§ 120.07 is a class B felony, which carries a maximum sentence of 25 years in prison.

New York Penal Law § 120.06

Covers gang assault in the second degree, the elements of which are identical to gang assault in the first degree, with this single difference: with gang assault in the second degree, the intent is to cause physical injury, but not serious physical injury, which is the requirement under gang assault in the first degree.

It’s important to note that with gang assault in the second degree, even though the intent is not to cause serious physical injury, the charge is only viable if serious physical injury nevertheless results. Penal Law §§ 120.06 is a class C felony, which carries a maximum sentence of 15 years in prison.

What constitutes serious physical injury?

In People v. Armstrong, 2015 NY Slip Op 01335, the court, quoting from the New York Penal Law, defined a serious physical injury as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00).

Although less defined in law, you can think of a physical injury that is not ‘serious’ as any physical injury less severe in its consequences.

Elements of First and Second-Degree Assault in New York, a Closer Look

Let’s take a more detailed look at each of the elements of first and second-degree gang assault under the New York Penal Law.

It’s important to understand each of the elements because prosecutors must prove each and everyone ‘beyond a reasonable doubt’ to win a case at trial. If any of the elements is missing, or otherwise cannot be proved, a defendant cannot be convicted in a court of law.

Element #1:

Intent to cause serious physical injury (first degree) or intent to cause physical injury (second degree). For any criminal charge to be viable, a prosecutor must prove, beyond a reasonable doubt, that the defendant had what is called the ‘requisite mental state.’

In the case of gang assault in the first degree, that requisite mental state is the intention to act in such a way as to cause serious bodily harm to another. In the case of gang assault in the second degree, it is the intention to act in such a way as to cause bodily harm to another. Prosecutors, when they are able to prove the requisite mental states for these two criminal charges, generally do so by establishing that the conduct engaged in by the defendants was of such a type as to invite the inference that serious injury, or injury, was intended.

For example:

A defendant fires a gun at another person during an altercation. Because firing a gun in the direction of another person is commonly understood to risk the death or very serious injury of that person, it can often be inferred that such injury was the intent of the person firing the gun.

Element #2:

The person with the requisite mental state to cause serious physical injury to another, or physical inquiry to another, is aided by two or more persons actually present.

The defining characteristic of gang assault in New York, whether in the first or second-degree, is that three or more people in the same physical location and at the same time act together in some way, or some ways, to cause the requisite injury to another.

That is to say, while the criminal charges are charged against individuals, gang assault is conceived of in the law as a unified group activity, in terms of both time and location.

For example:

In People v. Sanchez, 2009 NY Int. 186, Sanchez was charged with gang assault in the first degree after he and two companions got into an early-morning fight with two other men, both of whom suffered serious physical injuries as a result of the fight.

Element #3:

Serious physical injury is in fact caused to the person intended to be harmed (see Element #1 above), or to some third person who was not an intended object of a defendant’s actions. It is important to understand if you are charged with either first or second-degree gang assault, that serious physical injury must result to another person.

If a prosecutor demonstrates in court that a defendant had the intent to cause serious physical injury or physical injury to another person, and also shows that the defendant acted with two or more others on that intention, the charge will nevertheless fail where the victim did not suffer serious physical injury.

Once again, a serious physical injury is defined in New York law as a “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00 [10]).

Always Remember

If charged with either first or second-degree gang assault in New York, understand that prosecutors must prove each and every one of these elements beyond a reasonable doubt.

Related Offenses

Three common, related offenses to either first or second-degree gang assault in New York are:

First-degree assault (New York Penal Law §§ 120.10);
Second-degree assault (New York Penal Law §§ 120.05) and
Attempted gang assault (New York Penal Law §§ 110.00).

What distinguishes the first and second-degree assault offenses from the first and second-degree gang assault offenses?

The non-gang offenses do not have a necessary element of group activity in them. That is, a person charged with either first or second-degree assault could have, and often has, acted alone.

With respect to the attempted gang assault offense, the requisite mental state to engage in gang assault is present, but either the group activity element is not present, or the intended injury does not result.

It is important to understand that often more than one offense may be charged for specific conduct, and also that prosecutors, through the plea-bargaining process, may be willing to take a guilty plea for a lesser offense to avoid the risk and costs of going to trial. And of course, a person charged with such offenses will have to consider those risks and costs from his perspective, as well.

Case Law on Gang Assault

language of the Penal Codes in light of the facts of specific cases. Moreover, legal cases provide opportunities for defense attorneys to make arguments about the technical requirements under each element of the codes.

For examples:

In People v. Mynin, 2009 Slip Op. 08855, the defense raised a defense that all the individuals involved in a given assault needed to share the same required intent to cause serious physical injury as the charged defendant.

Specifically, the defense argued that because the required “two or more other persons actually present” could not be shown to have shared the specific intent of the defendant, the offense of gang assault could not be sustained.

The court held that the intent element of gang assault is specific to the charged defendant, meaning that prosecutors can sustain a charge of gang assault by proving intent only with respect to the charged defendant, without regard to the intent of the two or more persons also involved in the assault.

In a separate case, People v. Sanchez, 2009 NY Int. 186, the court had occasion to more clearly define what is required under the element of “two or more persons actually present.” Specifically, at issue is how to define “actually present.”

The court found that “a person is actually present when such person is in a position to render immediate assistance to a person participating in the assault and is ready, willing and able to do so irrespective of whether such person intended to cause physical injury.”

There is also case law that defines more clearly what establishes whether a victim has suffered a serious physical injury. In People v. Armstrong, 2015 NY Slip Op 01335, the court held that “resolution of the issue whether the victim sustained a serious physical injury depends upon the nature of ‘the victim’s actual injuries, rather than mere possibilities or what could have happened.’”

That is to say, even where a defendant can be shown to have intended serious physical injury, and acted on that intent, unless serious physical injury actually resulted, the charge of gang assault in the first degree cannot be proven.

Legal cases adjudicated in the courts regularly add and clarify meaning to the terms of New York’s Penal Code, and the gang assault provisions are no exception. If you are charged with gang assault under New York’s Penal Code, it is important to choose a lawyer who not only knows the written law but who understands how the courts have interpreted that law.

Penalties

Penal Law §§ 120.06 and §§ 120.07 both carry serious potential criminal penalties. Gang assault in the second degree (Penal Law §§ 120.06) is a class C felony and carries a maximum sentence of 15 years in state prison. Gang Assault in the first degree is a class B felony and carries a maximum sentence of 25 years in state prison.

If you’ve been charged with either offense, you should give serious consideration to discussing your case with an experienced criminal defense attorney.

Defenses

As with all alleged criminal conduct, there are defenses that can be made. In the context of gang assault, these defenses usually have to do with the elements of the specific criminal provisions.

For example:

If you’ve been charged with either first or second-degree gang assault, you can argue that you lacked the requisite intent to have committed the crime. You could also argue that the required number of other persons were not present, such that the second element of the charge cannot be sustained.

And you could also argue that the victim’s injuries are not serious, or perhaps not even cognizable under the law (in the case of gang assault in the second degree).

And of course, there are more general, but highly-important other defenses that may be raised in the specific context of gang assault: You have been misidentified, or can’t be proven to have been present; you were acting in self-defense; etc.). The best defense in any given case will depend on many factors unique to that case.

Getting the Help You Need

If you have been charged with gang assault in the first or second-degree, this is no time to be without an experienced and expert New York attorney to handle your case.

As discussed, the penalties for a conviction under either charge are very significant, with serious consequences for you and your loved ones.

The New York criminal justice system is no place to be without a steady and experienced guide, to answer your questions and to fight for your rights under the law. You owe it to yourself, and your loved ones, to retain experienced and expert counsel to protect your interests.