The terms “assault” and “battery” are often used interchangeably due to their similarities, but it can be hard to understand the difference between assault vs. battery. Are assault and battery the same or different crimes in New York? How is assault vs. battery defined under New York law? Below, criminal defense attorney Gianni Karmily explains the differences between assault and battery, as well as how New York classifies different acts of assault.
If you’re facing an assault charge in New York, Nassau County, Long Island, assault defense attorney Gianni Karmily is here to help defend your rights using strategic assault defenses in New York.
Call our Great Neck location at (516) 630-3405 or our Hempstead location at (516) 614-4228 to schedule an initial case evaluation with Attorney Karmily regarding your criminal charge.
How is Assault and Battery Defined in New York?
When discussing assault vs battery, are the same or different crimes in New York?
In New York, assault is defined as striking someone with enough physical force to cause bodily injury. This can be done intentionally, unintentionally, or with a dangerous or deadly weapon. The term battery, which in many other jurisdictions refers to the willful and unlawful use of physical force against another person, is not a distinct crime in New York. Instead, actions that would traditionally be classified as battery fall under New York’s legal definition of assault.
While assault and battery are separate and distinct crimes in some states, New York law treats assault and battery as one criminal charge—assault—without a separate battery charge. This means any act involving unwanted or harmful physical contact leading to injury is considered assault under New York Penal Law.
Thus, the battery is considered part of the assault, even though there is no specific charge labeled as “battery” in New York law.
What’s the Difference Between Assault and Battery in New York?
The main difference between assault and battery in New York is that assault is a criminal offense, whereas battery is a civil tort. In New York, a person can receive assault charges, but they cannot receive battery charges or assault and battery charges, as battery is only used in civil courts.
How Do New York’s Assault Charges Compare With Other State’s Battery Charges?
Unlike New York State, many other U.S. states treat assault and battery charges as two distinct crimes, with either an assault or battery charge leading to an arrest. In general, criminal battery is the act of making unlawful physical contact with another person. In contrast to battery, assault is defined as the act of causing someone to fear that they are in danger of unlawful physical contact.
In other states, someone could face an assault or battery charge as a result of harming someone or threatening to harm someone. In New York, however, they would only face an assault charge for these actions since battery is not defined under the New York Penal Law. Acts that would be considered an aggravated battery case in other states fall under New York’s definition of aggravated assault.
Additionally, what other states might label as civil assault—threatening someone and causing fear of imminent harm—is often treated as a menacing charge in New York. Menacing involves intentionally placing someone in fear of serious harm or death without necessarily physically harming them.
Under New York law, threatening behavior that causes fear with no actual physical contact or no actual use of force is generally prosecuted as menacing, while physical injuries result in assault charges. Thus, the actions separated into assault and battery charges in other states are covered under assault and menacing in New York.
Bodily Harm vs. Bodily Injury in New York Assault Laws
Many states define assault and battery as acts that cause “bodily harm” or threaten to cause bodily harm to another. Bodily harm often refers to any offensive touching, hurt, or injury to another.
In contrast, New York law defines assault as an act that causes bodily injury. New York defines “physical injury” as impairment of physical condition or substantial pain.
What is “Serious Bodily Injury” According to New York Law
New York law also defines “serious physical injury” as any injury that causes permanent disfigurement, impaired health, loss or impaired function of any organ, a substantial risk of death, or death, similar to the definition of “great bodily harm” or “serious bodily injury” in other states.
Intentional Tort of Assault in New York
In New York, a person can receive assault charges, but they can also be financially liable in civil court. Under New York tort law, assault is defined as an act that creates the physical threat of harm without any actual physical contact.
In other states, the civil assault definition often involves creating a fear of imminent harm, much like New York’s intentional tort of assault. However, New York addresses this same behavior in criminal cases through menacing charges. In New York State, criminal menacing occurs when a person intentionally places someone in fear of imminent serious injury or death without physically harming them or making contact.
Thus, the behavior that would be considered civil assault in other states has its closest criminal equivalent in New York’s menacing statutes.
Harmful or Offensive Contact
Threatening someone can cause serious harm to a person’s emotional well-being. If an act would cause a reasonable person to believe that they were in danger of harm, the victim threatened could sue the perpetrator for civil battery. This can occur when someone makes harmful or offensive contact, which is defined as:
- Any contact that causes physical harm or
- Any nonconsensual contact that does not cause physical harm.
For harmful or offensive contact, the victim can be awarded damages for medical bills, lost wages, and other damages. These civil torts allow victims of criminal assault to seek compensation through a civil battery claim.
Levels of Assault Under New York State Law
New York classifies different acts of assault into different levels, or degrees, based on their severity. Charges can include first-, second-, and third-degree assault, assault of a police officer, aggravated assault, and aggravated assault of a minor.
Each degree carries its own potential outcomes, so if you’ve been accused or charged with assault in New York, it’s important to know what assault charge or charges you’re actually facing. A criminal defense attorney can help you understand the criminal charges and the potential penalties associated with the assault charge, providing you with the best course of action for your case.
Third Degree Assault or Simple Assault
In New York, third-degree assault or simple assault are Class A misdemeanor offenses, which are the most serious misdemeanor offenses under New York law.
Someone can be charged with committing assault in the third degree if they:
- Intentionally or recklessly cause physical injury to another person
- Cause physical injury to another person through the use of a deadly weapon or dangerous instrument as a result of criminal negligence.
If you’ve been charged with third-degree or simple assault, contact Nassau County, Long Island misdemeanor defense attorney Gianni Karmily.
Second Degree Assault
Second-degree assault can result in a Class D felony charge in New York, which, while less severe than the other assault charges, is still a serious criminal charge.
Someone may be charged with second-degree assault if they:
- Intentionally cause serious physical injury to another with or without the use of a deadly weapon;
- Recklessly cause serious physical injury to another through the use of a deadly weapon or dangerous instrument;
- Intentionally drug another person with the intent to cause a stupor, unconsciousness, or physical impairment or injury;
- Injure a person during the commission or attempted commission of a felony or while fleeing the scene of the crime of those separate crimes;
- Intentionally cause physical injury to individuals in various professions or age groups in various circumstances.
Second-degree vehicular assault is typically charged as a Class E felony in New York. However, it can be elevated to a Class D felony under certain aggravating circumstances, such as when the driver has a BAC of .18 or higher, causes serious injury to multiple people, or has prior DWI-related offenses.
Reckless assault of a child can also result in a Class D felony. This occurs when someone recklessly causes serious physical injury to a child under 18 years old.
First-Degree Assault or Aggravated Assault on a Peace Officer or Police Officer
First-degree assault and aggravated assault on a police officer are some of the most severe forms of assault charges under New York law, resulting in Class B felony charges. Someone commits first-degree assault when they:
- Cause serious physical injury to someone with a deadly or dangerous weapon;
- Intentionally disfigures a person and/or permanently destroys or damages a person’s organ;
- Recklessly put someone’s life at risk, leading to serious physical injury; or
- Cause serious physical injury while committing or attempting to commit a felony or while fleeing the scene of the crime.
Someone commits aggravated assault on a police officer when they use a deadly or dangerous weapon to cause serious physical injury to:
- A person whom they know, or should reasonably know, is a police officer; or
- A police officer who is performing official duties.
First-degree gang assault can also result in a Class B felony in New York State.
If you’ve received felony charges, contact Nassau County, Long Island felony crimes lawyer Gianni Karmily to see how he can help with your case.
Aggravated Vehicular Assault
In New York, a person can be charged with aggravated vehicular assault if he or she engages in reckless driving and commits second-degree vehicular assault as defined in section 120.03, and either:
- Have a BAC of .18 or above;
- Have their license suspended or revoked in any state;
- Have been convicted of a DWI;
- Cause serious physical injury to multiple people; or
- Have a child passenger under fifteen years old and cause serious injury (as related to Leandra’s Law in New York)
Aggravated vehicular assault in New York can result in Class C felony charges. Class C felonies also apply to assault on a judge, second-degree gang assault, and assault on police or first responders.
Aggravated Assault on a Minor Under the Age of 11
Under New York law, aggravated assault on a minor under the age of 11 is a Class E felony. Aggravated assault on a minor occurs when someone:
- Commits third-degree assault against a minor under the age of 11;
- Is not a minor at the time of the crime; and
- Has previously been convicted of a crime against a person under the age of 11 within the past ten years.
A daycare provider can face the same penalties if they commit reckless assault on a minor while the child is in their care.
Nassau County, Long Island Criminal Defense Lawyer
When you’re facing criminal charges, it’s important to have a Nassau County, Long Island, violent crimes defense attorney who can put you in the best position to avoid serious criminal penalties like jail time. At the Law Firm of Gianni Karmily, PLLC, Gianni Karmily will evaluate the circumstances surrounding your alleged crimes and will develop an effective legal defense against your criminal charges.
Take your first steps toward justice–fill out the online form or call the Great Neck location at (516) 630-3405 or the Hempstead location at (516) 614-4228 to schedule a case evaluation with Attorney Karmily regarding your criminal charge.