When an individual is charged with assault, the proceedings can take many different forms. It can depend, in part, on what kind of assault the State alleges the defendant committed. In an opinion that recently came out of an appeals court in New York, the court discusses the difference between assault in the second degree and in the third degree, providing an apt reminder of the different elements and consequences of each crime.
Facts of the Case
In the recent case before the Appellate Division, First Department, the defendant was convicted of attempted assault in the first degree and assault in the second degree. The conviction was based on an incident in which the defendant punched and injured two individuals one night in Manhattan. At least one other person was involved in the attack, and that second person used a weapon, which the prosecution described as a “long, thin, dark-colored object” during trial.
Assault in the Second Degree
On appeal, the defendant argued that the court should have granted his request to instruct the jury that he could have been found guilty of assault in the third degree in instead of assault in the first degree. The difference between the two crimes is important. To be found guilty of assault in the first degree, a jury would have to find: that you had the intent to cause serious physical injury (and did cause injury); that you intended to cause injury and used a dangerous instrument (i.e., a weapon); that you assaulted an official; that you recklessly caused injury with a weapon; that you intentionally caused someone to become unconscious; or that you injured someone when committing a felony.
Assault in the Third Degree
Assault in the third degree, by contrast, does not require one of these elements. Instead, a person can be found guilty of assault in the third degree if that person intends to cause injury (and does cause injury), recklessly causes injury, or negligently causes injury with a dangerous weapon.
Assault in the third degree is a misdemeanor and results in a lighter sentence than assault in the first degree. In his appeal, the defendant argued that it would have been reasonable for the jury to find that he merely attempted to cause physical injury without use of a weapon. Just because another one of the individuals used a weapon, he said, did not mean that he used one. His offense would have therefore fit into assault in the third degree instead of in the first degree.
The higher court agreed. The trial court should have allowed the jury to consider whether a conviction for assault in the third degree would have been more appropriate. Because of this error, the case should be reversed, and the defendant’s conviction should be vacated.
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