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The Spodek Law Group understands how delicate high-profile cases can be, and has a strong track record of getting positive outcomes. Our lawyers service a clientele that is nationwide. With offices in both LA and NYC, and cases all across the country - Spodek Law Group is a top tier law firm.

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What is NY Gang Assault?

By Spodek Law Group | February 13, 2023
(Last Updated On: October 17, 2023)

Last Updated on: 17th October 2023, 03:00 pm

What is NY Gang Assault?

New York has two main gang assault charges – Gang Assault in the Second Degree (NY Penal Law 120.06) and Gang Assault in the First Degree (NY Penal Law 120.07). These charges are used to prosecute assaults involving three or more people acting together to intentionally cause physical injury or serious physical injury to another person.

Overview of NY Gang Assault Charges

The key elements of NY gang assault charges include:

  • Intent – The defendant must have intended to cause physical injury or serious physical injury. Physical injury means impairment of physical condition or substantial pain. Serious physical injury means a physical injury that creates a substantial risk of death, serious disfigurement, loss of a body organ, or extended impairment of health.
  • Aiding – The defendant must have been aided by two or more other people who were actually present during the assault. Actually present means being in a position to immediately assist in the assault.
  • Injury – The assault must result in physical injury or serious physical injury to the victim. The victim does not need to be the intended target, it can be a third party.
  • Gang Ties – There is no requirement that the defendants be members of an organized gang. The term “gang” in these charges simply refers to a group of three or more people acting together.

Gang Assault in the Second Degree (PL 120.06)

To be convicted of Gang Assault in the Second Degree, the prosecution must prove:

  • The defendant intended to cause physical injury
  • The defendant was aided by two or more people who were actually present
  • The assault resulted in serious physical injury to the victim or a third party

Gang Assault 2nd is a Class C violent felony, punishable by up to 15 years in prison.

Gang Assault in the First Degree (PL 120.07)

To be convicted of Gang Assault in the First Degree, the prosecution must prove:

  • The defendant intended to cause serious physical injury
  • The defendant was aided by two or more people who were actually present
  • The assault resulted in serious physical injury to the victim or a third party

Gang Assault 1st is a Class B violent felony, punishable by up to 25 years in prison.

Sentencing and Penalties

As violent felonies, both Gang Assault 1st and 2nd carry mandatory minimum prison sentences if convicted:

  • Gang Assault 2nd: Minimum 2 years
  • Gang Assault 1st: Minimum 5 years

Probation, conditional discharge, and sentences of 1 year or less are prohibited. Fines up to $15,000 (2nd degree) or $25,000 (1st degree) may also be imposed.

Juveniles tried as adults face the same penalties. Juveniles tried as juveniles generally face lighter penalties – 1-4 years in juvenile detention facility for Gang Assault 2nd, and 1-7 years for Gang Assault 1st.

Common Scenarios and Examples

Some common scenarios that could lead to NY gang assault charges:

  • A fight breaks out between two groups at a bar or nightclub, resulting in serious injury to someone in the opposing group or an innocent bystander.
  • A planned attack is carried out by a group against a rival gang member or other target, intending to seriously injure that person. Baseball bats, knives, or other weapons are used.
  • A robbery or mugging is committed by a group, and the victim sustains a serious injury like a knife wound or broken bones.
  • A group surrounds an isolated individual on the street and brutally beats the person, intending to seriously injure them.
  • A student is jumped and assaulted by multiple classmates, resulting in hospitalization.

Even if the defendants are not members of an organized gang, coordinating an attack or fight as a group can lead to gang assault charges if serious injuries occur.

Gang assault charges are often accompanied by other charges like:

  • Assault 1st, 2nd, or 3rd Degree
  • Reckless Endangerment 1st or 2nd Degree
  • Robbery 1st or 2nd Degree
  • Conspiracy
  • Weapons Possession

If the assault does not result in serious physical injury, lesser assault charges may be brought instead of gang assault. Attempted gang assault is also a possibility if serious injury does not occur.

Defenses to NY Gang Assault

There are several possible defenses to NY gang assault charges:

  • No intent to cause injury – The defendant did not intend to cause physical or serious physical injury, the injury was accidental or reckless.
  • Not actually present – One or more of the alleged accomplices was not actually present and able to assist in the assault.
  • No serious injury caused – The injury does not meet the legal definition of serious physical injury.
  • Misidentification – The defendant alleges they are not the person who committed or assisted in the assault.
  • Self-defense – The defendant’s actions were legally justified as self-defense or defense of others.
  • False accusations – The alleged victim is falsely accusing the defendant out of ulterior motives.

An experienced criminal defense attorney can evaluate the evidence and determine if any viable defenses exist to get the charges reduced or dismissed.

Gang Assault Investigations and Evidence

Successfully prosecuting gang assault charges often relies heavily on the initial police investigation. Police and prosecutors build these cases using sources like:

  • Victim and witness statements – Interviewing victims and witnesses to identify perpetrators and gather details about how the assault occurred. However, intimidation of witnesses by gangs can hamper prosecutions.
  • Physical evidence – Collecting physical and forensic evidence that links defendants to the crime, such as DNA, fingerprints, blood evidence, or clothing fibers. Weapons used may also be recovered.
  • Electronic evidence – Cell phones, social media posts, surveillance videos, and GPS data may provide evidence of planning, coordination, or involvement in the assault.
  • Gang databases – Law enforcement databases that document known gang affiliations, territories, rivals, and criminal activities may help establish the defendants as collaborators.
  • Prior bad acts – Evidence of previous crimes by the defendants, or ongoing disputes between gangs, may help establish motive.
  • Informants – Police may use informants within gangs to obtain inside information about criminal activities and plans.

However, there are important legal restrictions around collecting and using some of this evidence against defendants. Experienced gang assault defense lawyers know how to scrutinize the admissibility and strength of prosecution evidence.

Sentencing Considerations for Gang Assault

During sentencing, judges consider factors like:

  • Severity of the victim’s injuries
  • Defendant’s role as ringleader or passive participant
  • Possession or use of weapons
  • Defendant’s prior criminal record
  • Ongoing safety threat to the community

Judges have some discretion on whether to impose the minimum sentence or depart upward or downward. Sentences for multiple defendants involved in the same assault may vary based on their role and culpability.

For juveniles tried as juveniles, the court has wider discretion to consider the child’s maturity, home environment, and amenability to rehabilitation programs.

Gang assault charges must be taken very seriously, as the potential penalties are severe. An experienced NY criminal defense lawyer can fully investigate the prosecution’s evidence for weaknesses, raise all possible defenses, negotiate with the district attorney, and represent your best interests in court. They may be able to get charges reduced or dismissed, or at least minimize the penalties. For the best chance at the most favorable outcome, consult with a lawyer immediately if facing gang assault allegations.

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