senate Bill S2358

2011-2012 Legislative Session

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

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to codes
Jan 19, 2011 referred to codes

Co-Sponsors

S2358 - Bill Details

Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd ยงยง10.00 & 120.05, Pen L
Versions Introduced in 2009-2010 Legislative Session:
S8231

S2358 - Bill Texts

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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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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.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2358

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05849-01-1

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