Assault in the Third Degree and Harassment in Domestic Violence Cases

Assault in the Third Degree

PL § 120.00 can be committed in three ways:

• with intent to cause physical injury to another person, causing such injury to that person or to a third person;
• recklessly causing physical injury to another person; or
• with criminal negligence, causing physical injury to another person by means of a deadly weapon or a dangerous instrument.

Domestic cases are almost always charged under the first subdivision, often with the reckless subdivision added. Assault in the third degree is a class A misdemeanor, punishable by up to 364 days in jail or three years of probation. A conviction is a permanent criminal record.

Harassment in the Second Degree

Under PL § 240.26, a person commits harassment in the second degree when, with intent to harass, annoy, or alarm another person, they strike, shove, kick, or otherwise subject that person to physical contact, or attempt or threaten to do so. The statute also covers following a person in or about public places and engaging in a course of conduct that alarms or seriously annoys a person and serves no legitimate purpose.

No injury is required. Harassment in the second degree is a violation, which under New York law is not a crime. The maximum sentence is 15 days in jail, and jail is rarely imposed. A person who pleads guilty to it can truthfully say they have not been convicted of a crime.

How the Charges Compare

The felony level is covered on our felonious assault page. In domestic cases it most often arises when an object is involved. A thrown phone, a kitchen knife, or a belt can each be treated as a dangerous instrument depending on how it was used.

The Dividing Line: Physical Injury

PL § 10.00(9) defines physical injury as "impairment of physical condition or substantial pain." The Court of Appeals has drawn the boundaries in two decisions. In Matter of Philip A. (1980), the court held that petty slaps, shoves, kicks, and the like are not what the Legislature meant, and that red marks and a complaint of pain, without more, did not establish substantial pain. In People v. Chiddick (2007), the court explained that substantial pain is more than slight or trivial pain but need not be severe or intense. It looked to the nature of the injury, the victim's own description of the pain, whether the victim sought medical treatment, and the motive of the offender.

Those factors tell us where to look. Did the complainant go to a hospital, or decline medical attention at the scene? Do the photographs show bruising or swelling, or nothing at all? What does the body-worn camera footage show about how the complainant was moving and speaking minutes after the incident? Did the complainant miss work or take medication? A complaint that recites "substantial pain" in boilerplate can survive arraignment. It does not always survive a trial, and prosecutors know it.

Charges That Are Commonly Added

• Aggravated harassment in the second degree, PL § 240.30(4). A class A misdemeanor that applies when a person, with intent to harass, annoy, threaten, or alarm, strikes, shoves, kicks, or otherwise subjects another to physical contact and thereby causes physical injury to that person or to a member of that person's family or household. See Aggravated Harassment and Stalking.
• Menacing. Charged where the complainant says they were placed in fear of injury, for example by a raised fist or a displayed object. See menacing charges.
• Criminal mischief. Charged for broken property. Taking or breaking a phone to stop a 911 call is specifically covered by the criminal mischief statute.
• Criminal obstruction of breathing. Any allegation of contact with the neck. See strangulation charges.
• Endangering the welfare of a child, PL § 260.10. A class A misdemeanor often added when children were present during the incident. It can also lead to an ACS investigation.

Defenses

• Justification. Under PL Article 35, a person may use physical force to the extent they reasonably believe necessary to defend themselves or another from the imminent use of unlawful physical force. Once the defense is raised, the People must disprove it beyond a reasonable doubt. Injuries to the accused, the relative size of the parties, and who called 911 all bear on it.
• No physical injury. As discussed above. If the injury element fails, the assault count fails, and what remains is a violation.
• No intent. Contact during a struggle over a phone or car keys, or while trying to leave a room, is not necessarily contact made with intent to injure, harass, annoy, or alarm.
• Credibility. Many incidents are mutual, and many occur during a breakup or custody dispute. The Domestic Incident Report, the 911 call, text messages sent afterward, and medical records frequently contradict one another.
• The complaint cannot be converted. If the complainant does not sign a supporting deposition, the People may be unable to proceed. See Can the Complainant Drop the Charges?

How These Cases Are Resolved

Short of dismissal or acquittal, there are two common non-criminal outcomes, and the difference between them and a misdemeanor plea is the focus of most plea negotiations.

Adjournment in contemplation of dismissal. Under CPL § 170.55, the case is adjourned and then dismissed if the accused stays out of trouble. There is no plea and no admission. In a family-offense case the adjournment period is one year instead of the usual six months. It typically comes with an order of protection for that period and sometimes a program. When the period ends, the case is dismissed and the record is sealed under CPL § 160.50.

A plea to a violation. The accused pleads guilty to harassment in the second degree or to disorderly conduct under PL § 240.20. The usual sentence is a conditional discharge, typically for one year, with an order of protection and sometimes a program. The record of a violation conviction is sealed under CPL § 160.55. The order of protection, however, remains in the statewide registry while it is in effect.

The reasons to insist on one of these outcomes go beyond the record itself. A misdemeanor assault conviction against a spouse, partner, or co-parent can bring a federal firearms ban, can create immigration consequences for a non-citizen, can serve as the predicate for a felony aggravated family offense charge if there is a later arrest, and will appear on employment and licensing background checks. For more on how misdemeanor cases move through the system, see our misdemeanor defense page.

Charged With Assault or Harassment?

If you have been arrested for assault in the third degree or harassment after a domestic incident in New York, call us at 212-233-1233 or email [email protected].