1st Degree Assault New York

1st Degree Assault New York

You got arrested for first-degree assault in New York. Maybe it was a fight that went too far – you hit someone with a weapon and caused serious injuries. Maybe it was a car accident where prosecutors claim you drove recklessly with depraved indifference to human life. Maybe you were committing a robbery and someone got seriously hurt even though you didn’t intend to injure anyone. Now you’re facing New York Penal Law § 120.10, a Class B violent felony with mandatory minimum five years prison and maximum 25 years.

Thanks for visiting Spodek Law Group. We’re a second-generation law firm managed by Todd Spodek, with over 50 years combined experience defending violent crime cases in New York. We handle first-degree assault charges in New York Supreme Court. This article explains the four ways you can be charged with first-degree assault, what “serious physical injury” means under New York law, why depraved indifference cases are particularly difficult to defend, and how the mandatory minimum sentencing eliminates plea bargaining options that exist for most felonies.

Four Pathways to First-Degree Assault

Penal Law § 120.10 lists four different ways to commit first-degree assault. Most common is subdivision one: with intent to cause serious physical injury, you cause such injury by means of a deadly weapon or dangerous instrument. This covers knife attacks, beatings with baseball bats, shootings where the victim survives but suffers serious injuries. The prosecution must prove you intended to cause serious injury AND you used a weapon AND serious injury actually resulted. All three elements required – intent, weapon use, serious injury.

Subdivision two addresses permanent disfigurement: with intent to disfigure someone seriously and permanently, or to destroy/amputate/disable a body part, you cause such injury. This covers acid attacks, deliberately cutting someone’s face, intentionally causing injuries that result in permanent disability. We’ve defended cases where someone threw boiling liquid causing permanent scarring – prosecutor charged first-degree assault under subdivision two because the intent was to disfigure and the result was permanent scarring visible on victim’s face and arms.

Subdivision three is depraved indifference: under circumstances showing depraved indifference to human life, you recklessly engage in conduct creating grave risk of death and thereby cause serious physical injury. This is the most litigated provision because “depraved indifference” is a legal standard that courts have struggled to define consistently. Typically involves conduct like firing a gun into a crowded area, driving a car at high speed through pedestrian zones, throwing heavy objects from high buildings. The conduct must show more than recklessness – it must demonstrate complete disregard for whether people live or die.

Subdivision four covers felony assault: during commission of a felony or immediate flight therefrom, you or an accomplice cause serious physical injury to someone other than a participant in the felony. This means if you’re committing a robbery and your co-defendant beats the victim causing serious injury, you get charged with first-degree assault even if you didn’t personally cause the injury. The felony assault doctrine holds all participants responsible for serious injuries caused during the underlying crime.

Serious Physical Injury – More Than Just Pain

All four subdivisions require “serious physical injury” – not just injury, not just substantial injury, but serious physical injury. New York Penal Law § 10.00(10) defines it 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 or member.”

What qualifies? Broken bones that require surgery and months of recovery. Stab wounds causing internal organ damage. Head injuries resulting in traumatic brain injury with lasting cognitive impairment. Severe burns covering significant body surface area. Eye injuries causing partial or total vision loss. The injury must be protracted – lasting, not temporary. A black eye heals in two weeks, that’s assault in the third degree. A fractured skull requiring surgery with permanent cognitive deficits, that’s serious physical injury supporting first-degree assault charges.

Medical testimony becomes crucial. Prosecution presents doctors who treated the victim, medical records showing the extent of injuries, expert testimony about prognosis and permanent effects. We challenge medical testimony by showing injuries weren’t as serious as prosecutors claim – what they call “serious physical injury” was actually substantial injury supporting second-degree assault but not first-degree. The distinction matters because second-degree assault is Class D violent felony with lower mandatory minimum (two years instead of five), making plea negotiations more favorable.

Deadly Weapon vs Dangerous Instrument

Subdivision one requires use of a deadly weapon or dangerous instrument. Deadly weapons include firearms, knives, certain martial arts weapons that are deadly by design. Dangerous instruments include objects not designed to be weapons but used in a manner likely to cause death or serious injury – baseball bat, brick, broken bottle, heavy chain, vehicle used as a weapon.

New York courts have held that hands and feet can’t be deadly weapons, but conduct using them can support depraved indifference charges under subdivision three. We defended a case where someone repeatedly kicked victim’s head causing skull fracture and brain bleed – prosecutor initially charged first-degree assault subdivision one claiming feet were deadly weapons. We moved to dismiss arguing feet aren’t deadly weapons under New York law. Judge agreed, dismissed subdivision one, but prosecutor re-indicted under subdivision three for depraved indifference – ultimately defendant was convicted of first-degree assault anyway, just under different theory.

Depraved Indifference – The Subjective Standard

Depraved indifference is the hardest assault provision to defend because it’s subjective. What conduct demonstrates “depraved indifference to human life”? New York’s highest court tried to clarify the standard in People v. Feingold and subsequent cases, holding that depraved indifference requires more than recklessness – it requires conduct showing complete disregard for human life, wanton indifference to consequences, callous disregard for safety of others.

Prosecutors in Manhattan, Brooklyn, Bronx use depraved indifference charges when deadly weapons aren’t involved but conduct was extremely dangerous. Pushing someone in front of a subway train. Throwing construction materials from a high-rise building onto crowded sidewalk. Deliberately running a red light at high speed through a busy intersection. These cases involve reckless conduct creating grave risk of death that results in serious injury – if the injury had been fatal, it would be depraved indifference murder; since victim survived, it’s depraved indifference assault.

Defense challenges the subjective nature of “depraved indifference.” We present evidence that defendant’s conduct, while reckless, didn’t rise to the level of complete disregard for human life. Maybe defendant was intoxicated, impaired judgment but not acting with callous indifference. Maybe defendant’s actions were impulsive response to provocation, showing recklessness but not depravity. These arguments rarely result in dismissal but sometimes convince juries to convict of lesser-included offense of second-degree assault instead of first-degree.

Mandatory Minimum Five Years – No Probation Option

First-degree assault is a Class B violent felony carrying mandatory minimum five years prison. This means if you’re convicted, the judge must sentence you to at least five years even if you have no prior criminal record, even if the circumstances suggest leniency is appropriate, even if victim doesn’t want you imprisoned. The statute eliminates judicial discretion – judges can’t impose probation, can’t sentence to time served, can’t use alternative sentencing programs. Minimum five years state prison, maximum 25 years.

The mandatory minimum creates difficult plea negotiation dynamics. In most felony cases, prosecutors offer pleas to lesser charges or recommend probation for first offenders. With first-degree assault, there’s less negotiating room. If you’re guilty and evidence is strong, prosecutors might offer a plea to second-degree assault (Class D violent felony, two-year mandatory minimum instead of five). If evidence is weak or there are defense issues, they might dismiss entirely. But there’s no middle ground of pleading guilty to first-degree assault and getting probation – the statute doesn’t allow it.

At Spodek Law Group – we’ve defended first-degree assault cases in New York Supreme Court and challenged serious physical injury determinations through medical expert testimony. Todd Spodek has tried violent felony cases before New York juries and negotiated charge reductions when evidence didn’t support first-degree elements. If you’re facing first-degree assault charges in New York, call us at 212-300-5196. The mandatory five-year minimum means you can’t afford to wait – early intervention in the grand jury phase or pre-trial negotiations can make the difference between first-degree conviction and reduction to lesser charges.