BILL NUMBER:S2358

TITLE OF BILL:
An act
to amend the penal law, in relation to clarifying
the definition of physical injury
and serious physical injury; and
the culpable state of mind
necessary for the commission of assault in the second
degree when a serious
physical injury is caused to another person

PURPOSE:
To clarify the definitions of "physical
injury" and "serious
physical injury" and the standard in terms of intent necessary for a
person to be charged with assault in the second degree.

SUMMARY OF PROVISIONS:
Section One - Subdivisions 9 and 10 of Section 10.00 of the
Penal Law, as
amended by Chapter 791 of the Laws of 1967, are amended to redefine
"physical injury" and "serious physical injury."

Section Two - Subdivision 1 of Section 120.05 of the Penal Law is
amended to change the standard of intent necessary for a person to be
              

charged with assault in the second degree when a serious physical
injury occurs.

JUSTIFICATION:
The current law defining the various degrees of assault and their
punishments are woefully inadequate. This bill addresses the
foundation inadequacy of definitions that fail to correspond with the
terms as they are commonly understood by the citizens of the state.

For example, under current law, assault in the 3rd degree as set forth
in Section 120.00 of the Penal Law is a Class A Misdemeanor. A
defendant commits assault in the 3rd degree when he/she intentionally
or recklessly causes physical injury to another person. Physical
injury is currently defined in Penal Law Section 10.00 (9) as
"impairment of physical condition or substantial pain."

All too frequently, courts have failed to find that 'physical injury'
was inflicted and therefore convicted defendants on a lesser charge
of a violation in spite of evidence of injuries including bleeding,
bruises, dizziness and other inflictions. By expanding the definition
of 'physical
injury', this legislation will make sure that defendants who are
guilty of assault cannot easily plea down to lesser offenses.

As there is no Class E felony statute, assault in the 2nd degree is
defined as a Class D felony in Penal Law Section 120.05 (1) as "with
intent to cause serious physical injury to another person, he causes
such injury to such person..." Serious physical injury is currently
defined in Penal Law Section 10.00 (10) 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."
This definition has clearly not kept up with advances in emergency
medicine nor does it recognize the serious nature of injuries that
would not fall neatly into the above definition. Such a scenario
would mean that a victim could face excruciatingly painful and
serious injuries as a result of being assaulted but due to advances
in medicine their attacker may only be charged with assault in the
31d degree if only 'physical injury' was recognized under current
definitions.

Also, at issue is being able to prove the intention of serious
physical harm by an attacker. Sometimes, a punch can lead to a
traumatic brain injury or other serious medical condition.
However, case law in New York is clear that a single punch does not
demonstrate intent to cause such a serious injury even if that is the
outcome. Individuals should be held responsible for the injuries
inflicted on another human being whether they cause physical injuries
or serious physical injuries.

The goal of this legislation is to not only update the definitions
clarify the seriousness of the injuries a person has sustained but
also to clarify what culpable state of mind is necessary for a person
to be charged with assault in the 2nd degree.

LEGISLATIVE HISTORY:
S.8231 of 2010

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the first of November
next succeeding the date on which it shall have become a law.