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First Degree Gang Assault: New York Penal Code § 120.07

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If at least three people participate in an assault, then the offense becomes a gang assault. Today, the term “gang” may be associated with an identifiable and organized street gang; however, for the purposes of this statute, “gang” refers to three or more people who may or may not be members of an organized “gang.” Under New York Penal Code 120.07, three or more people who intend to cause and actually cause serious physical injury to another person may be prosecuted for first degree gang assault. Second degree gang assault involves the intent to cause physical injury to another person, while first degree gang assault involves the intent to cause “serious” physical injury to another person. The difference between the two types of gang assault centers around the intent to cause “serious” physical injury to another person.

Hypothetical Case

Suppose four young men approached a middle-aged man who was by himself in a public park. The middle-aged man was minding his own business and tried to ignore the young men. The young men decided to make the middle-aged man pay attention to them and wanted him to fear them. One of the young men called on the other three young men to viciously attack the middle-aged man. The middle-aged man was left for dead from the attack, and were it not for some joggers who found him, he would have bled to death. All four of the young men could be prosecuted for first degree gang assault because they all participated in almost killing the middle-age man.

Possible Defenses

Lack of intent to cause serious physical injury. If it can be shown that the accused did not have the intention to seriously injure another person, then this may prove to be a viable defensive tactic to avoid conviction for violating code § 120.07.

Seriousness of injury in question. If the injury does not meet the criteria for a “serious physical injury” as specifically defined in New York Penal Code § 10.00(10), then the charge of first degree gang assault cannot be sustained. The court considers an injury “serious” if it is permanently disfiguring or life-threatening. Multiple stab wounds may not necessarily be considered “serious” if they are not considered life-threatening or permanently disfiguring. These are some of the factors that may be considered: (a) loss of consciousness, (b) presence of a permanent scar, (c) presence of a great deal of pain, (d) damage to vital organs, and (e) need for surgery.

Other lines of defense. Defense attorneys who are experienced in many types of assault cases are more likely to have, from their case history, proven techniques and strategies upon which to develop a convincing case in defense of their clients.

Possible Sentence

Imprisonment. Conviction of the crime of first degree gang assault as a Class B felony carries a sentence of up to twenty-five years in jail. However, as a violent felony, the prison sentence must be at least five years in duration. The presiding judge will assess the convicted person’s character and prior criminal record when imposing the sentence.

Monetary fine. The presiding judge may also levy a fine up to $5000.

NY Penal Code § 120.07: First Degree Gang Assault

To summarize, a person is guilty of committing the Class B felony, first degree gang assault, if they are aided by two or more people, physically present, and have the intention to cause serious physical injury to another person and act to cause serious physical injury to that person or to a third person.

Attorney to Defend Against the Charge of First Degree Gang Assault

To successfully defend against a charge of first degree gang assault, it is imperative to seek legal counsel from a reputable and experienced defense law firm with highly qualified staff to effectively protect your legal rights and interests.

The Barry C. Weiss P.C. attorney firm has aggressively defended people charged with first degree gang assault in the courts of New York. The Elliot Adler PC attorney firm also has expertise in cases involving other felonies and misdemeanors, including any involving charges of assault, second degree vehicular assault, or aggravated vehicular assault. The Elliot Adler PC law firm is committed to developing effective defense cases and helping their clients avoid conviction.

We can be reached at (212) 785-1300 or to schedule a no-obligation, free legal consultative meeting to evaluate your case.

Related Offenses

For additional information, refer to the following §s of the New York Penal Code:

  1. First degree assault: § 120.10
  2. Second degree gang assault: § 120.06
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