Second Degree Attempted Assault is a Crime of Violence
Attempted Assault 2nd Degree
In Violation of NYPL 120.05
The Second Circuit concluded that a conviction for attempted assault in the second degree is a crime of violence and therefore an aggravated felony. See United States v. Cooper, 23-6911 (2d Cir. March 14, 2025).
The Second Circuit has determined that a New York conviction for second degree attempted assault under NYPL 120.05(7) is a crime of violence because it requires physical force causing injury to another person. Given the similarity between the definition of a crime of violence for immigration and criminal sentencing purposes, this case will likely be treated as precedential for immigration purposes as well.
Full text of United States v. Cooper, 23-6911, (2d Cir. March 14, 2025) can be found here:
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Court's Reasoning Regarding Crime of Violence
Both this Court and the Supreme Court have made clear that the “physical force” required for an offense to be a crime of violence under the Guidelines is “force capable of causing physical pain or injury to another person.” United States v. Scott, 990 F.3d 94, 111 (2d Cir. 2021) (en banc); see Stokeling v. United States, 586 U.S. 73, 84 (2019) (“[T]he Court has repeated its holding that ‘physical force’ means ‘force capable of causing physical pain or injury.’” (citations omitted)).2 This is not a high standard to meet. Indeed, as the Supreme Court noted, “force as small as hitting, slapping, shoving, grabbing, pinching, biting, and hairpulling” all qualify as physical force because “none of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury.” Stokeling, 586 U.S. at 85.
The New York Court of Appeals has made clear that N.Y.P.L. § 120.05(7) requires at least as much force as U.S.S.G. § 2K2.1(a). See, e.g., People v. Chiddick, 8 N.Y.3d 445, 448 (2007) (holding that “petty slaps, shoves, kicks[,] and the like” do not inflict “physical injury” as defined by the New York assault statutes (internal quotation marks omitted)); see also People v. Godfrey, 157 N.Y.S.3d 18, 19 (1st Dep’t 2021) (noting that “petty slaps, shoves, kicks and the like” do not amount to “physical injury”). Indeed, New York Penal Law section 10.00(9) defines “physical injury” as “impairment of physical condition or substantial pain.” We therefore see no world in which a person could be convicted of seconddegree attempted assault under section 120.05(7) without clearing the low hurdle for a crime of violence articulated by the Supreme Court in Stokeling. See 586 U.S.at 85.
For all these reasons, we hold that a violation of N.Y.P.L. § 120.05(7) is categorically a crime of violence as defined by section 2K2.1(a) of the Sentencing Guidelines.
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