If you are charged in New York State with any crime wherein “physical injury” is an element of the crime charged (for example, Assault in the Third Degree), you need a Criminal Defense Attorney well-versed in not only the statutory definition of “physical injury” but how the courts have interpreted the definition and applied that definition in other cases such as one of the attorneys at the Westchester Firm of Tilem & Campbell. Many times a good plea-bargain offer results from your attorney pointing out difficulties in the prosecutions case. For example, showing the prosecutor prior cases where similar allegations and injuries were found not to constitute a physical injury might result in the prosecutor offering the violation of disorderly conduct. If plea negotiations fail, an experienced criminal defense attorney usually will attack, among other things, the “physical injury” element of the crime at trial. But obviously, he or she must be well versed in the cases dealing with physical injury findings.

Physical injury: (PL § 10.00(9)). Physical Injury is defined as the impairment of one’s physical condition or substantial pain. For the exact definition, see NY Penal Law § 10.00(9). The definition of “physical injury” and whether one has in fact suffered a “physical injury” is of utmost importance where one is charged with Assault in the Third Degree (PL § 120.00); a Class “A” Misdemeanor. Virtually all Third Degree Assault charges hinge on whether the defendant intentionally, recklessly or with criminal negligence caused a physical injury. The state of mind element (intentional, recklessly or with criminal negligence) and the physical injury element are what we as defense attorneys look to attack.

A person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another, he in fact causes a physical injury to another or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another person with a deadly weapon or a dangerous instrument.

(For the exact wording of the Assault in the Third Degree Statute see PL § 120.00)

Recall, a physical injury can be established by impairment of one’s physical condition and/or by the suffering of substantial pain. However, because a serious criminal conviction can result from a physical injury, the Court of Appeals (the highest Court in New York) has been strict in requiring proof of an “objective level” of physical injury to hopefully ensure that one is not convicted of a crime where the injury was merely inconsequential. For example, in Matter of Philip A., 1980, 49 N.Y.2d 198, 424 N.Y.S.2d 418, 400 N.E.2d 358 (1980), the Court of Appeals held that two punches to the face causing red marks, crying, and an unspecified degree of pain was insufficient proof of a physical injury. Two years later, in People v. Jimenez, 55 N.Y.2d 895, 896, 449 N.Y.S.2d 22, 433 N.E.2d 1270 (1982) the Court of Appeal reaffirmed the need for a true “physical injury” holding that a one centimeter cut above the victim’s lip, without more, was insufficient proof of a physical injury.

Illustrative Cases Regarding the Physical Injury Element of Assault in the Third Degree

Petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives, do not fall within the precepts of the statute. Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 (1980).

In People v. Estes, 131 A.D.2d 872, 517 N.Y.S.2d 230 (2nd Dept. 1987), the Second Department held that a “physical injury” was not present where the complaining witness had been bit on the hand, was taken to a hospital where superficial lesions on his hand were cleaned and a tetanus shot administered. The Second Department noted that, as in the instant case, “[t]he complainant received no subsequent medical attention.” Id 131 A.D.2d 872, 517 N.Y.S.2d at 231.
In another Second Department case it was held that cutting the palm of a victim’s hand with razor blade during a robbery did not cause impairment of physical condition or substantial pain and, therefore, did not create a “physical injury” People v. Sanders 245 A.D.2d 471, 666 N.Y.S.2d 663 (2nd Dept. 1997)

However, a victim was found to have suffered a physical injury where she was slammed down and choked to the point where her tongue hung out, she could not breathe and almost passed out leaving her with a sore neck and difficulty swallowing. People v. Brown, 243 A.D.2d 749, 662 N.Y.S.2d 934 (3rd Dept. 1997).

Physical impairment, and therefore a physical injury, was established where the complainant was hit in the forehead with the barrel of a pistol, causing the victim to bleed profusely and leaving a wound that left a wishbone-shaped scar about one-half inch in diameter over the complainant’s right eye. People v Tejeda, 1991, 78 N.Y.2d 936, 573 N.Y.S.2d 633, 578 N.E.2d 431 (1991).

Impairment of physical condition, and therefore a physical injury, was also established where a police officer suffered bites on both his hands and a back strain caused during a struggle with a defendant who had lunged at him. People v. Maturevitz, 149 A.D.2d 908, 540 N.Y.S.2d 44 (4th Dept. 1989)

A physical injury has been established under the “substantial pain” prong is where there was evidence that the victim experienced a lot of pain after respondent struck him with a skateboard and that stitches were required to close the cut beside the victim’s eye. Matter of Isaac M. 219 A.D.2d 805, 805, 632 N.Y.S.2d 49, 50 (4th Dept. 1995).



  1. carl johnston says:

    i beleive physical injury is any type of injury that would cause pain to another person

  2. Peter Tilem says:

    Your belief is incorrect. Section 10.00 subdivision 9 of the New York State Penal Law gives the legal definition of physical injury in New York for criminal cases.

  3. tammy mackin says:

    I am in need of your help! an injustice has occurred to my nephew. My nephew was attached in the village of Canton early Sunday morning by three SLU football players strung out on drugs. The Canton police DID NOT do their job properly and treated my nephew like he was the perpetrator. One of the football players has an opportunity to play professional football and that point was brought up by one of the officers to persuade my nephew to not press charges. I know that in ii ts self is not illegal BUT UNETHICAL and IMORRAL!. The football players threatened deadly physical force to receive a ride from my nephew. “I’m gonna kill you nigga” He was approached while in his vehicle stopped at a stop sign in the village and told to take them all somewhere. one perpetrator jumped in the back of his truck. When my nephew refused and told them to get out of his vehicle he was attacked. One perp started punching and hitting my nephew. He sustained injuries because he was punched in the face several times. The passengers of the vehicle also sustained injuries. when they tried to help my nephew who was fighting for his life!!! None of the witnesses were asked to give statements,none of the other passengers were questioned by the police nor were they asked if they had injuries. My nephew was threatened by police that he could be arrested because while defending himself kicked the attackers. The end result was the students receiving tickets for a VIOLATION. WHAT THE HECK!!! equivalent to a headlight out on a vehicle ticket?? My nephew was seen by a doc. and diogn. with only bumps and bruises, a small cut above the eye. He was not treated that morn, but has sufferred pain.. Im not sure how substantial???? So I see that he did not have physical inj. according to the law right??? How ever what about attempted kidnapping in the 2nd degree??? What can we do?? IT IS UNJUST??

Contact Information