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Gang assault is a serious criminal offense in New York State, carrying significant legal consequences. The charge is distinct from other assault offenses due to its specific requirements regarding the number of participants involved in the incident.
Defining Gang Assault Under New York Law
In New York, the term “gang assault” can be misleading because it does not require any affiliation with an organized street gang. The defining element of this charge under Article 120 of the New York Penal Law is that an individual, when committing an assault, is aided by “two or more other persons actually present.”
This requirement means the accomplices must be in a position to render immediate assistance and be ready and able to do so. For instance, a getaway driver waiting in a car down the street would likely not meet the “actually present” requirement. The core of the offense is the collective nature of the attack, which elevates it beyond a standard assault charge.
Gang Assault in the Second Degree
Gang Assault in the Second Degree is the less severe of the two gang assault charges, but it is still a serious offense. A person can be charged with this crime when, with the intent to cause “physical injury” to someone, they cause “serious physical injury” to that person or a third person. The mismatch between the intent and the resulting injury is a defining characteristic of this charge.
Under New York Penal Law, “physical injury” is defined as an impairment of physical condition or substantial pain. This is a lower threshold than “serious physical injury.” This offense, found in Penal Law § 120.06, is classified as a Class C violent felony.1N.Y. Public Law. N.Y. Penal Law Section 120.06 – Gang Assault in the Second Degree
Gang Assault in the First Degree
Gang Assault in the First Degree represents a more severe violation. This charge, detailed in New York Penal Law § 120.07, applies when a person, with the intent to cause “serious physical injury,” successfully causes such an injury. The distinction from the second-degree charge is the alignment of intent with the result.
The law defines “serious physical injury” as an injury that:
- Creates a substantial risk of death, or causes death
- Causes serious and protracted disfigurement
- Causes protracted impairment of health
- Causes the long-term loss or impairment of any bodily organ’s function
An alternative way to be charged with first-degree gang assault is if a person causes serious physical injury by using a deadly weapon or a dangerous instrument, while only intending to cause physical injury. A deadly weapon includes items like a loaded firearm, while a dangerous instrument can be any object capable of causing death or serious injury depending on how it is used. This offense is a Class B violent felony.2NYS Open Legislation. NYS Penal Law § 120.07 – Gang Assault in the First Degree
Sentencing and Consequences for Gang Assault
A conviction for gang assault in New York carries severe penalties. For Gang Assault in the Second Degree, a Class C violent felony, a first-time violent felony offender faces a sentencing range between 3.5 and 15 years in prison.
For Gang Assault in the First Degree, a Class B violent felony, the penalties are more substantial. A conviction requires a mandatory minimum prison sentence of 5 years and can extend up to a maximum of 25 years for a first-time offender.3NYS Open Legislation. NYS Penal Law § 70.02 – Sentence of Imprisonment for a Violent Felony Offense
In addition to incarceration, a conviction for either degree can result in fines up to $5,000.4NYS Open Legislation. NYS Penal Law § 80.00 – Fine for Felony All violent felony sentences include a mandatory period of post-release supervision, which is typically 5 years for Class B and C felonies, though a judge may specify a shorter period of at least 2.5 years.5NYS Open Legislation. NYS Penal Law § 70.45 – Determinate Sentence; Post-release Supervision A permanent violent felony record has lasting consequences, affecting employment, housing, and the right to own a firearm.