The Law Offices of John Ferrara

How Does The Degree of Injury a Victim Suffers Impact an Assault Charge?


  1. As we have seen above, the physical injury means impairment of physical condition or substantial pain.
  2. “Serious physical injury” means 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.
  3. If there is no injury, the accused may only be convicted of a violation; if there is physical injury, the accused may be convicted of a misdemeanor in most cases; if there is serious physical injury, the accused will likely be convicted of a felony.

Does a Victim Have to be Injured For an Assault to Have Occurred?

  1. All assault crimes require at least physical injury.
  2. Without physical injury, one could still be guilty of harassment in the second degree, provided the other elements of that non-criminal offense are present.

What Are The Penalties For an Assault or Battery Conviction in New York?

  1. Harassment in the second degree is a violation, punishable by no more than 15 days.
  2. Assault in the Third Degree is a class A misdemeanor, punishable by no more than one year in jail.
  3. Assault in the First Degree is a class D felony, punishable by no more than seven years.
  4. Assault in the Second Degree is a class B violent felony, punishable by no more than twenty-five years.

What Are The Potential Defenses Used in Assault Cases?

  1. Self-defense, in New York we call it justification, is a common defense to assault charges.
  2. With certain limitations, a person may use physical force upon another person when and to the extent, he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person,
  3. But many other defenses may be appropriate as well. These include:
    1. Identification: the person who committed the assault is not the person, the police charged with the assault.
    2. Alibi: the person accused was elsewhere when the crime occurred.
    3. Mental Disease or Defect: the person the police charged lacked the mental capacity to be guilty.
    4. Intoxication: through intoxication, one lacked the capacity to form the required intent. This applies only to some crimes.

What Happens if an Alleged Assault Victim Recants Their Allegations? Is The Case Dismissed?

  1. The short answer is no.
  2. Once a criminal charge is filed, only the prosecutor can dismiss the charge.
  3. But the longer answer is that sometimes the prosecutor will choose to respect the wishes of the alleged victim,
  4. And other times, the prosecutor will confront a reality that he or she cannot prove a case where the only witness is reluctant to proceed.
  5. It is extremely important here, however, that the defendant be aware of the potential additional crime of tampering with a witness.
  6. A person is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, (a) he wrongfully induces or attempts to induce such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding, or (b) he knowingly makes any false statement or practices any fraud or deceit with intent to affect the testimony of such person.
  7. If the alleged victim reaches a voluntary decision to request a withdrawal of the charges and discusses that with the prosecutor that is lawful.
  8. If the defendant or someone on his or her behalf tampers, that is not lawful.

For more information on Degree Of Injury, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.

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