Friday, August 23, 2013

Ithaca Lawyer Getting Past the Reptile Brain in New York Assault 3rd

The Simple Reptile Mind from

We have a relatively primitive brain. I didn't come up with this, it's all that reading I do. We are at our base instincts, reptilian. We have brains wired for survival of our species. All else is as they say, is merely commentary.

The reptile brain thinks in duality. Hard and fast dichotomy, with no in betweens. Safe vs. Dangerous, flight vs. fight, good vs. bad, this brain is quick to make decisions and judgments. All hard wired and ready at an instant.

Legally Speaking from

Where this brain of ours doesn't serve us in when it comes to subtlety. I am one of those knuckle head guys that doesn't always read the signs (as my wife loves to quip). How did you miss that? It was so obvious? Me, like millions of other people don't always think in degrees, in those shades of grey, or those slight differences. Those colors all look the same, you already have shoes just like those, or why does it matter about what style you wear to that event. I think women think a little less reptilian as a general rule.

Law is Centered in Subtlety 

We have crimes based upon degrees. We have crimes based upon levels of harms. We have crimes based in mental states (intentional, negligent, and reckless). We have punishments in degrees as well, called in New York State, "graduated sanctions." In law, evidence and proof are measured and weighed (the scales of justice). Appropriate sentences are proportioned to fit the crime.

Degrees of Injury are Vital 
Defending Against NYS Assault in the Third

Which brings me directly to New York State Penal Law section 120.00 Assault in the Third Degree, aka assault 3, or assault 3rd.

The essential element of the Prosecution (the District Attorney) proving you guilty of assault 3 is the causing of a physical injury to another person.

Physical injuries vary greatly by degree. Are these "substantial" injuries? Are they lingering (permanent)? Are there any aftereffects from the injuries?

New York State law defines physical injury under Penal Law section 10.00 (9):

Physical injury is defined as one that causes impairment of someone's physical condition or substantial pain. So they (the DA) must SHOW (Demonstrate) impairing injuries or substantial injuries to prove you guilty of Assault 3rd.

This is an objective measure, not a subjective one. My wife is a nurse, and I can tell you what someone thinks (or feels) is painful varies greatly person to person. Some people think everything is a level 15 on a scale of 1 to 10, while others are bleeding profusely and feel fine.

Where the Court Found Guilt of Assault in the Third Degree

In one case, People v. Guzman, 260 A.D.2d 188 (1st dept. 1999) the court found Guzman guilty of assault 3rd based upon the physical injuries sustained, he appealed, and the higher Court upheld the conviction based upon the injuries sustained:

red streaks across the face that lasted for 2 weeks
cuts and bruises that lasted for days
large blood clot inside the mouth
soreness of the ribs, face, and mouth that lasted for days

KEY TAKEAWAY the injuries Lingered, they lasted for days or weeks.

Where the Court Found Innocent of Assault in the Third Degree

In People v. Rodriguez, 158 A.D. 376 (1990) the Appellate Court reversed a conviction of Assault 3rd because the injuries did not meet the objective level of either causing impairment or substantial pain. The injuries sustained:

three punches to the leg
bruises from the blows
No testimony of any aftereffects from the bruises

When is it just a Bruise? from
The Court did not feel the prosecution met the "substantial pain" threshold to warrant a conviction for Assault 3rd.

In another case, People v. Oquendo, 134 A.D. 2d (1987) the Appellate Court found insufficient evidence to sustain a conviction for Assault 3rd based upon the following injuries:

knocking someone down to the floor
hitting her ankle
kicking her
Bruised and black/blue ankle
NO aftereffects, NO lingering

The various New York State Courts have held that the following are merely minor injuries
(NO substantial injuries = NO Assault 3rd):

a one-centimeter cut above the lip
superficial scratches
abrasions requiring one stitch
blows causing red marks
even being struck in the head by a gun
pain experienced at the time of injury

The Courts are looking for aftereffects. 

KEY TAKEAWAY: Substantial pain requires more than slaps, kicks, punches, shoves, and blows.
Pictures of bruises in and of themselves will NOT meet the threshold.

The defense of many crimes lies in looking at degrees and subtlety. Proof is not usually a clear case of black or white in many situations. Looking at the law, the facts, and these shades can mean the difference between GUILT and INNOCENCE.

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law


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