Criminal Law
Assault and Battery Examples in New York 2024: What’s the Difference?

Assault and Battery Examples in New York 2024: What’s the Difference?

On Behalf of vitalianolaw | Oct 10, 2023 |

New York is one of the few states in the country that offers no legal distinction between assault and battery. In fact, there is no legal mention of battery in the New York Penal Code at all. Instead, that which would be considered battery in other states is simply classified as assault in New York. If you’ve been charged with assault, it is imperative that you partner with a qualified Staten Island, NY, assault and battery attorney, like those at The Vitaliano Law Firm.

What Is Assault?

In New York, assault is defined as either intending to cause physical harm to another person or causing physical harm to another person as a result of severe negligence or disregard for human life and safety. Assault can be charged as either a misdemeanor or a felony depending on the severity of the offense and the circumstances of the case. Aggravating factors can increase a charge’s penalties.

There are three degrees of assault for which you could be charged in New York:

  • Third-degree assault. Also known as simple assault, this is the least severe charge for assault in New York. Regardless, a Class A misdemeanor still represents a serious crime. This involves intending to cause harm to another person, causing harm through reckless behavior, or being criminally negligent while operating a weapon or dangerous object.
  • Second-degree assault. The first of the assault charges to represent a felony involves intending to cause harm with a deadly weapon or intending to cause serious injury.
  • First-degree assault. Upgrading an assault charge to first-degree may rely on particular aggravating factors in each unique case. This charge involves intentionally causing serious injury with a deadly weapon, intentionally causing permanent disability or disfigurement to another person, causing serious injury to another through reckless indifference to human life, or causing serious injury to another while committing another felony.

What Is Battery?

Since New York has no penal code for battery, it is not a criminal offense. However, it is possible for one party to sue another in civil court under New York tort law. If you engage in unwanted touch on another person, for example, they could file a personal injury claim against you for mental, emotional, or physical harm.

The difference in this case is the type of harm caused. Assault deals strictly in cases of injury and personal harm. However, you could be sued for battery tort merely for behavior that someone else finds offensive.

What Are the Penalties for Assault?

Misdemeanor assault charges qualify as a Class A misdemeanor. This type of charge carries a sentence of up to one year in jail, or alternatively three years probation, and up to $1,000 in fines. The extent of the other person’s injury is irrelevant in an assault charge case. The penalties would be the same whether the other party suffered a broken bone or a minor cut. If convicted of a felony assault, you could face more severe penalties, including extended jail time and heavier fines.

A second-degree assault charge carries between three and seven years of jail time, though with a strong enough defense team, it could be dropped down as low as one year. There are many unique classifications that would cause an assault charge to be upgraded to the second degree, such as if the assault was directed at a child, police officer, elderly person, or government official.

A first-degree assault charge can lead to a sentence of up to 25 years of prison time and $5,000 in fines. The minimum sentence is between seven and ten years if the defendant has a prior felony conviction.

No matter to what degree you are being charged, assault represents a serious conviction and requires the help of qualified and experienced legal assistance.


Q: What Is the Difference Between Assault and Battery?

A: In New York, there is no law defining battery as there is defining assault. This means that assault falls under the New York penal code, while battery is no more than a civil term and is enforced under civil tort law. If you are guilty of committing assault, you could face arrest, with prosecution by the state or federal government. However, if you commit battery against another, they could bring a personal injury case against you in civil court.

Q: What Elements Make Up an Assault and Battery Charge?

A: For an assault and battery charge to lead to a conviction in New York, two elements must be demonstrated. First, there must be intentional conduct. Second, that action must place the other party either in actual harm or into the threat of harm. For example, threatening and then waving a knife or other deadly instrument at a person constitutes assault.

Q: What Counts as Assault in New York?

A: Generally, it is an assault to injure someone in New York without legal justification, such as self-defense. It is considered assault at every degree of harm, from merely intending to harm someone to causing severe or permanent injury to a person, including death. If there is intent, there does not need to be harm caused to be charged. If harm is caused, intent may not be necessary to prove, particularly in cases where the harm resulted from gross negligence or disregard.

Q: Can You Be Charged for Verbal Assault?

A: While assault requires intentional conduct, such as physical contact, in addition to a threat to be considered assault, you could be convicted of menacing charges for verbal threats made against another person even without acting on those threats. Menacing charges involve intentionally placing or attempting to place another person in a state of fear for their life or safety, which could be done through severe verbal threats alone.

Speak With a Qualified Assault Attorney

Michael Vitaliano and his team at The Vitaliano Law Firm have the proper experience and skill necessary to handle your case and secure the most favorable outcome in your defense. Assault represents a serious crime and will have a permanent negative effect on your record if convicted. It is vital, therefore, that you work closely with an assault attorney who can present a strong defense in your case. Reach out to our firm today.