Last Updated on: 27th July 2023, 06:33 pm

The NY Gang Assault Charges: Understanding the Differences Between Second and First Degree

New York state law takes gang assault charges seriously, and individuals who are charged with gang assault face harsh penalties. Gang assault involves a group of people acting together to intentionally cause physical harm to another person. In this article, we will discuss the difference between NY Gang Assault in the Second Degree (New York PL 120.06) and NY Gang Assault in the First Degree (NY PL 120.07).

NY Gang Assault in the Second Degree (PL 120.06)

Under Penal Law Section 120.06, a person is guilty of Gang Assault in the Second Degree when they intentionally cause physical injury to another person, aided by two or more other people who are present, and the victim sustains serious physical injury.

According to New York Penal Law, the terms “intent,” “physical injury,” and “serious physical injury” all have special meanings. Jurors must follow legal definitions for these terms instead of using their own interpretation.

Understanding the Definitions Used in NY Gang Assault Charges

What is Intent Under NY Law?

The legal definition of intent is a conscious objective or purpose. If an individual swings at someone with a closed fist, it can be inferred that their intent is to cause physical injury to that person.

What is Physical Injury under NY Law?

The legal definition of physical injury means impairment of physical condition or substantial pain. Even a small bruise or mark is enough to be considered physical injury. The term substantial pain is any pain that is more than slight or trivial.

What is Serious Physical Injury under NY Law?

Under New York Law, serious physical injury means impairment of a person’s physical condition that creates a substantial risk of death, causes death, causes serious and protracted disfigurement, or causes protracted impairment of health or loss or impairment of the function of any bodily organ.

What is the Legal Definition of Actually Present under New York Law?

A person is considered actually present when they are in a position to render immediate assistance to a person participating in the assault and are ready, willing, and able to do so.

Penalties and Sentencing on NY Gang Assault in the Second Degree

Gang Assault in the Second Degree is a Class C Violent Felony and is punishable by 3.5 to 15 years in prison. Probation, conditional discharge, or a determinate sentence of one year or less are not possible.

NY Gang Assault in the First Degree (PL 120.07)

The difference between the two New York Gang Assault charges involves the intent that the individual has. New York Gang Assault in the Second Degree requires the intent to cause physical injury, while New York Gang Assault in the First Degree requires the intent to cause serious physical injury.

A person is guilty of Gang Assault in the First Degree when they intentionally cause serious physical injury to another person, aided by two or more other people who are present, and the victim sustains serious physical injury.

Penalties and Sentencing on NY Gang Assault in the First Degree

Gang Assault in the First Degree is a Class B Violent Felony and is punishable by 5 to 25 years in prison. Probation, conditional discharge, or a determinate sentence of one year or less are not possible.

Common Defenses to New York Gang Assault Charges

Mere Presence

One possible defense to the charges of New York Gang assault is the mere presence defense.

The Legal Definition of Being Actually Present under New York Law

In the world of criminal law, every detail matters. One such detail is the legal definition of a person being “actually present” during an assault. Simply being in the vicinity is not enough to warrant a charge of gang assault. Rather, a person must be in a position to provide immediate assistance to someone involved in the altercation and must be ready, willing, and able to do so.

Consider this scenario: A, B, and C show up to fight D. All three of them are in a position to help each other in the brawl, so they would be considered actually present for the purposes of gang assault charges.

However, if A and B go to fight D, and C stays home, but C was the one who invited D to the location of the fight, A, B, and C cannot be charged with gang assault because C was not actually present and was not ready, willing, and able to help A and B in the fight.

Penalties and Sentencing for NY Gang Assault in the Second Degree

Gang Assault in the Second Degree is a Class C Violent Felony in New York. This means that the charge is punishable by 3.5 to 15 years in prison. If you’re convicted of this offense, you cannot receive probation, conditional discharge, or a determinate sentence of one year or less.

New York Gang Assault in the First Degree (PL 120.07)

New York law recognizes two different gang assault charges: second degree and first degree. The main difference between the two is the intent of the offender.

Gang Assault in the Second Degree requires the intent to cause physical injury, while Gang Assault in the First Degree requires the intent to cause serious physical injury.

Intent can be inferred from a person’s actions, and the specific circumstances of the offense will determine the difference in intent between the two charges. For example, if the gang assault involves just fists and no serious injuries, the intent is likely to cause physical injury. However, if the assault involves weapons and serious injuries, the intent is likely to cause serious physical injury.

To be guilty of Gang Assault in the First Degree, a person must:

Have the intent to cause serious physical injury to another person
Be aided by two or more other persons who are actually present
Cause serious physical injury to the victim or a third person.

Penalties and Sentencing for NY Gang Assault in the First Degree

Gang Assault in the First Degree is a Class B Violent Felony. This means that the charge is punishable by 5 to 25 years in prison. Like Gang Assault in the Second Degree, this charge is not eligible for probation, a conditional discharge, or a determinate sentence of one year or less.

Common Defenses to New York Gang Assault Charges

There are several defenses that can be used to fight gang assault charges in New York. Two of the most common are:

Mere Presence

Under the “mere presence” defense, a person cannot be prosecuted for a crime if they were simply at the location where the crime occurred. For example, if A goes to the store with B, C, and D, and they beat up E, A cannot be charged with gang assault if all they did was come to the store with the group.

Lack of Intent

Another common defense is to argue that the accused lacked the intent to cause physical or serious physical injury. Gang assault charges require intentional conduct, so if the injuries sustained were the result of reckless or negligent behavior, the accused cannot be charged with gang assault.