Assault on a Public Servant in Aggravated Circumstances
- The offense of assaulting a public servant is anchored in section 382A of the Penal Law, as follows:
382A. (A) If the attacker is a public servant or a person who fulfills a duty or function imposed on him by law, or a person who provides service to the public on behalf of an entity that provides service to the public, and the assault is related to the performance of the duty or function of the victim , he shall be sentenced to three years' imprisonment.
(b) A person who commits an offense under subsection (a), and commits one of the following, shall be sentenced to imprisonment for five years:
- intended to impede the victim in his duties or to prevent or hinder him from fulfilling his duties;
- The application of the offense of assaulting a public servant extends beyond public servants, as defined in section 3424 of the Penal Law, and also includes a person who fulfills his duties according to the law or a person who provides service to the public on behalf of an entity that provides service to the public. This is in light of the recognition of the increased importance of protecting these elements in order to maintain public order, public safety, and ensure the proper functioning of public institutions.
The factual element of this offense consists of the act and the circumstances of the assault, as defined in section 378 of the Penal Law. The assault itself is causing physical contact with another person's body without his consent. When it comes to the touch of using force that is not hitting, touching, or pushing, it must be to the extent that it can cause harm or discomfort.
The offense of assault is defined in section 378 of the Penal Law:
- A person who strikes, touches, pushes or otherwise exerts force on his body, directly or indirectly, without his consent or consent obtained by fraud, is an assault; For this purpose, the use of force - including the use of heat, light, electricity, gas, smell or any other object or substance, if they are applied to the extent that it is likely to cause damage or discomfort.
In our case, the defendant struck the chest of the prison guard Fares, who is a public servant, to a degree that could cause damage or discomfort, and caused redness in his chest. Therefore, the factual elements of the offense of assaulting a public servant are met.
- We are dealing with a behavioral offense, and therefore the mental element required for its existence is awareness of the nature of the act and the existence of the circumstances, which can be proved, as stated, by means of the general presumption of awareness. The aggravating circumstances set forth in section 382A(b)(1) of the Penal Law add a special intention to the offense and make it a target offense. In other words, for the purposes of the section, it must be proven that the assault is intended to impede the victim in his duties or to prevent or hinder him from fulfilling his duties. In our case, this special intention is learned from the circumstances of the incident.
The defendant cursed the guard Fares and shouted at him, he knocked on doors and even spat at him. All this while the defendant was in a waiting cell in the detention center. After the guard Fares was taken into a remote and isolated cell, the defendant struck the guard Fares in the chest with his head. These acts of defiance and assault were carried out against the prison guard Fares while the latter was performing his duties and were directed at the guard Fares, but because he was performing his role as a prison guard in charge of imprisoning the defendant. The act of assault was directly related to the work of the prison guard Fares, and it can be given the impression that it was intended to prevent the prison guard Fares from carrying out his duties.