PL 120.00: Assault in the Third Degree in New York

PL 120.00 is New York’s misdemeanor assault charge, and what separates it from a violent felony is not how the fight started but two words in the Penal Law: physical injury. Around 650 assault third cases a year move through Nassau and Suffolk County District Court. If you have been charged, call Hochhauser Criminal & DWI Defense at 516-939-1529.

PL 120.00 penalties

The statute has two theories. PL 120.00(1) is intentionally causing physical injury. PL 120.00(2) is recklessly causing it — the People’s fallback when intent fails, and a meaningfully better place to land, because it concedes no purposeful violence.

Why “physical injury” decides everything

New York defines physical injury as impairment of physical condition or substantial pain. That sounds broad, and prosecutors charge it broadly, but the Court of Appeals has put a real floor under it: petty slaps, shoves and kicks do not qualify. Where the complainant declined medical treatment, reported only brief soreness, and lost no work, the element is genuinely contestable — and if it fails, the assault charge fails with it.

That same definition is what separates this misdemeanor from a violent felony. Add a deadly weapon or a dangerous instrument to identical conduct and the charge becomes assault in the second degree, a Class D violent felony. A bar fight producing a split lip is a misdemeanor; the same fight with a bottle in hand is a violent felony.

And “dangerous instrument” is defined by use, not by the object. A shoe, a phone, a cup, a chair — any of them qualifies only if the way it was actually used made it readily capable of causing death or serious injury. That is the most attackable element in the ordinary assault second case.

Defenses to an assault charge

• Justification. The defense of choice in mutual-combat cases. Once it is raised, the People must disprove it beyond a reasonable doubt — the burden does not sit with you.
• No physical injury. No treatment, no records, no lost time, and a delayed complaint. Subpoena the EMS and hospital records early; they frequently say less than the accusatory instrument does.
• Intent. Contact during a scuffle over property, or accidental contact, negates the intentional theory.
• Who called first. In a mutual fight the complainant is often just whoever dialed 911 first. Cross-complaints and the sequence of calls matter.
• Motive to fabricate — pending custody, divorce, immigration or civil matters.
• Body-worn camera and scene video, which regularly contradict the written narrative.

Assault as a family offense

When the parties are married, formerly married, related, share a household, have a child in common, or are in an intimate relationship, assault is a family offense — and Family Court and the criminal courts have concurrent jurisdiction. The complainant can proceed in criminal court, in Family Court, or in both simultaneously.

Note how far “intimate relationship” reaches: cohabitation is not required, and dating relationships routinely qualify. Two proceedings from one incident means two orders of protection and statements in one case that can be used in the other. See our page on domestic violence charges for how the two tracks interact.

Where assault cases are heard on Long Island

We defend assault cases throughout Nassau County and Suffolk County. For the general overview see assault charges.

PL 120.00 frequently asked questions

Is assault in the third degree a felony?

No. It is a Class A misdemeanor. It becomes a violent felony when a weapon or dangerous instrument is involved, when serious physical injury results, or when the complainant is a police officer or other protected worker.

The other person started it. Does that matter?

Yes. Justification is a complete defense, and once raised the prosecution has to disprove it beyond a reasonable doubt. Who threw the first punch is a real issue, not a detail.

What if the complainant does not want to press charges?

The decision belongs to the District Attorney, not the complainant. Cases do proceed without a cooperative witness, though it changes the People’s position considerably.

Can an assault charge be reduced to a violation?

Often, on a first offense — commonly to harassment in the second degree, which is a violation rather than a crime. That is the standard target in a defensible misdemeanor assault case.

Speak with a Long Island assault defense lawyer

Richard Hochhauser has tried and negotiated assault cases in Nassau and Suffolk County District Court for years. Most of these cases come down to two questions — was there really an injury, and who was defending themselves — and both are answered with evidence, not with a plea at the first appearance.

This page provides general information about PL 120.00 assault in the third degree in New York and is not legal advice. Every case turns on its own facts. Contacting our firm does not create an attorney-client relationship.