Senate Bill S8231

                                BILL NUMBER:S8231

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 reckless-
ly causes physical injury to another person. Physical injury is current-
ly 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 'phys-
ical 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 medi-
cine 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 clar-
ify 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:
This is a new bill.

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.