Sunday, October 6, 2013

When does Behavior Become Criminal? New York Harassment in the 2nd versus Assault in the 3rd

I've said it before, law is a matter of degree. Subtle differences between one set of facts or perceptions can often mean the difference between a crime and a violation (non criminal). As an attorney practicing defense law a case and it's final outcome (disposition) turns on these details.

Why Do Bad Things Happen at Night?

I love to read and a number of recent books have all pointed to a psychological study from Case Western University on Willpower. Two sets of people are exposed to delicious chocolates and freshly baked cookies. They have to resist the cookies and chocolate. One group is given radishes as a snack (instead of the treats). They are to be compared for their ability to solve puzzles following this crappy snack.

The group given radishes to eat before doing some puzzles had less drive (and interest) to do the puzzles. Their willpower was depleted by avoiding the sweets.

The other group who ate the chocolates and the cookies (delicious) had all the time, concentration, and focus in the world.

The lesson: we are like batteries, with limited amounts of willpower. These will drain and be used up over the course of the day. Imagine now it is late at night, long day of studying, working, and doing things you abhor, temptation rears it's ugly head and viola you get in a fight, drive drunk, or do something you may regret in the morning. Decision making is best left for when we are fresh and rested. Bigger decisions should be slept on. The car dealer that keeps you at the dealership for hours on end has a strategy, wear you down, make you tired, and then victory (persuasion) is far easier.

It's ALL a Matter of Degrees

Physical criminal behavior is merely the step up from the push, shove, or confrontation. It is the taking of a situation to the next level. Moving from one level to the next means you have either upped the damage to that person (physical injury), or injured or obstructed a special person, or you have used a weapon. Sometimes the amount of damages can be argued (defended against), sometimes whether you actually possessed the intent (mental state of deliberateness), and sometimes the facts just don't fit the crime.

The 3 major levels of physical confrontation:

ONE (push, shove, kick)

§ 240.26 Harassment in the second degree.
    A  person  is  guilty  of  harassment  in the second degree when, with
  intent to harass, annoy or alarm another person:
    1. He or she strikes, shoves, kicks or otherwise subjects  such  other
  person to physical contact, or attempts or threatens to do the same; or
    2. He or she follows a person in or about a public place or places; or
    3. He or she engages in a course of conduct or repeatedly commits acts
  which  alarm  or  seriously  annoy  such other person and which serve no
  legitimate purpose.

Harassment is a Violation (non-criminal).

TWO (cause Physical Injury that lasts with substantial pain)

 § 120.00 Assault in the third degree.
  A person is guilty of assault in the third degree when:
  1. With intent to cause physical injury to another person, he causes
such injury to such person or to a third person; or
  2. He recklessly causes physical injury to another person; or
  3. With criminal negligence, he causes physical injury to another
person by means of a deadly weapon or a dangerous instrument.

  Assault in the third degree is a class A misdemeanor.

THREE (causes Serious Injury with a weapon, to a special person, elderly, or just serious injury)

§ 120.05 Assault in the second degree.
   A person is guilty of assault in the second degree when:
    1.  With intent to cause serious physical injury to another person, he
  causes such injury to such person or to a third person; or
    2. With intent to cause physical injury to another person,  he  causes
  such  injury  to  such  person or to a third person by means of a deadly
  weapon or a dangerous instrument; or
    * 3. With intent  to  prevent, injure,   a  peace  officer,  a  police  officer,
  registered  nurse,  licensed  practical  nurse,  sanitation  enforcement
  agent, New York city  sanitation  worker,  a  firefighter,  including  a
  firefighter  acting  as  a  paramedic  or  emergency  medical technician
  administering first aid in the course of performance  of  duty  as  such
  firefighter, an emergency medical service paramedic or emergency medical
  service  technician,  or  medical  or  related  personnel  in a hospital
  emergency department, a city marshal, a traffic enforcement  officer  or
  traffic  enforcement  agent,  from  performing  a  lawful duty, by means
  including releasing or failing to control an animal under  circumstances
  evincing the actor's intent that the animal obstruct the lawful activity
  of  such  peace  officer,  police  officer,  registered  nurse, licensed
  practical nurse, sanitation enforcement agent, New York city  sanitation
  worker,   firefighter,  paramedic,  technician,  city  marshal,  traffic
  enforcement officer or traffic  enforcement  agent,  he  or  she  causes
  physical injury to such peace officer, police officer, registered nurse,
  licensed  practical  nurse,  sanitation enforcement agent, New York city
  sanitation worker, firefighter,  paramedic,  technician  or  medical  or
  related  personnel  in  a  hospital  emergency department, city marshal,
  traffic enforcement officer or traffic enforcement agent; or
 4. He recklessly causes serious physical injury to another  person  by
  means of a deadly weapon or a dangerous instrument; or
    4-a.  He  recklessly causes physical injury to another person who is a
  child under the age of eighteen by intentional discharge of  a  firearm,
  rifle or shotgun; or
    5.  For  a purpose other than lawful medical or therapeutic treatment,
  he  intentionally  causes  stupor,  unconsciousness  or  other  physical
  impairment  or injury to another person by administering to him, without
  his consent, a drug, substance or preparation capable of  producing  the
  same; or

This was shortened purposely because it is way too long and wordy! Many other special people are mentioned, including the elderly.

Consult with a local attorney to discuss any charges you are facing.

Lawrence (Larry) Newman

Doctor of Chiropractic
Attorney and Counselor at Law

Covering cases within the Finger Lakes region of New York State. 

I am a DWI, Criminal Defense, and Personal Injury Attorney in Ithaca, NY. I know the law; I also know the science. Because of past medical training, with degrees in Human Biology and Chiropractic, my wealth of knowledge about human physiology and the science surrounding DWI and personal injury is your asset. My practice focuses on the defense of DWI and representing those hurt in car and truck accidents.  I offer a FREE initial consultation to review the complaint against you, explain your rights and options, and how I can best protect, defend, and represent you. When we talk, I'll also explain my fees and payment policies. I am available at 607-229-5184, or send me an email at

I am certified as a Breath Alcohol Technician, and in Field Sobriety Testing. I am a member of the National College of DUI Defense