Bill S2358-2011

Clarifies the definitions of "physical injury" and "serious physical injury"

Clarifies and expands the definitions of "physical injury" and "serious physical injury" to include physical pain, illness, the appearance of a visable or palpable mark, or impairment of physical condition, and the nature of evidence needed to establish the presence of pain; provides that the class D felony of assault in the second degree is committed when the defendant causes serious physical injury to another person with intent to cause physical injury to such person or to a third person.

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  • Jan 4, 2012: REFERRED TO CODES
  • Jan 19, 2011: REFERRED TO CODES

Memo

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 2358 2011-2012 Regular Sessions IN SENATE January 19, 2011 ___________
Introduced by Sens. SEWARD, LARKIN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes 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 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. 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 read as follows: 9. "Physical injury" means impairment of physical condition or [substantial] PHYSICAL pain, ILLNESS OR THE PRESENCE OF A PALPABLE CONTUSION, LACERATION, SCALDING OR WOUND. PHYSICAL INJURY MAY BE ESTAB- LISHED BY THE TESTIMONY OF THE VICTIM ALONE. PHYSICAL PAIN MAY BE ESTAB- LISHED BY EVIDENCE OF THE INJURIES INFLICTED IN THE LIGHT OF COMMON EXPERIENCE. 10. "Serious physical injury" means 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 OR MEMBER, OR THE LOSS OR IMPAIRMENT OF ANY MENTAL FACULTY, OR EXTREME PHYSICAL PAIN. SERIOUS PHYSICAL INJURY MAY BE ESTABLISHED BY PROOF THAT THE VICTIM REQUIRED SURGERY, OR A COURSE OF MEDICAL TREATMENT OR PHYS- ICAL REHABILITATION, OR WAS ADMITTED TO A HOSPITAL AS A PATIENT FOR MEDICAL TREATMENT. S 2. Subdivision 1 of section 120.05 of the penal law is amended to read as follows: 1. With intent to cause [serious] physical injury to another person, he OR SHE causes [such] SERIOUS PHYSICAL injury to such person or to a third person; or S 3. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.

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