Assault & Battery Can I Charge For Assault If I Shoved and They Punched Me Multiple Times

[ManOLaw5]

Jurisdiction

New York

On the subway, this guy is playing his music aloud right next to me and a few others (we are all seated). I tell him to stop playing the disturbing music, he refuses, and a verbal altercation ensues. We insult each other, he calling me "pussy" and I calling him "uncivilized trash". His stop comes, and before he leaves the car, he spits at me. I am held back by others on the train, but eventually I follow after him up the stairs, finding him at the upper platform. We both exit the turnstile and soon after I shove him. He punches me, I fall down, and while on the ground I grab hold of his leg. The details afterward are unclear. He punches me either two or three times afterwards. I might have fell to my knees and then he punched me for the second time, or perhaps I fell straight to the ground and the punches after the first were all while I was on the ground. I am sure that afterwards when I was on the floor and holding on to his legs, he punched me at least twice, one of which was definitely to the back of my head. People nearby in the station immediately separate us, and in the midst of this I throw my only punch at him, which is powerless, and I don't recall if it connects.

Afterwards, I talked to the police and they told me that both of us would get arrested. He mentions the following charges but doesn't to specify for which of us it is: "provoking, stalking, assault."

My physical situation from the incident is as follows. I was bleeding profusely from my right nose for a long time, and it is diagnosed as a nasal fracture. My left cheek is severely swollen. There is a swelling bump on the back of my head now, and I am not sure if it's from falling on the back of my or because of his punch. I mention my physical situation to highlight the severity of his attack on me and that he continued to attack me even after I was on the ground.

My main questions are as follows. What legal action can I take against the man? (I am thinking battery for spitting, assault for punching me over a shove, which I believe is not self-defense, especially for pummeling my head even after I was on the ground) In turn, what legal action can be taken against me? (Provoking? Stalking?) Ultimately (given the prior questions), is it a good idea for me to attempt to take legal action?

A secondary concern I have is this. The officer mentioned that I can be arrested too if I wanted to take legal action, and they couldn't find the man. If I want to call the police now and create a report or case of the incident or to press charges, then, even if the man isn't pressing charges against me, could I still be arrested or charged?

What motivates me to call the police now is mainly out of concern for the future. If I see the man again in the future, I can potentially press charges against him. Or, if he harasses me or does anything, having this case documented now will be helpful for then.

 

[cbg]

Yes. You could. By your own description, you threw the first punch.

 

[ManOLaw5]

I shoved him, but he threw the first punch.

 

[Highwayman]

First of all how long ago did this happen? No action can be taken if there was no identification made of this man. Were the police there with BOTH of you present?

There is no such thing as "battery" in New York, and no such thing as "provoking".

I would say that you were the primary aggressor here - you should have just let it go. Spitting is simply "Harassment" which is a violation and nothing can be done unless a police officer witnesses it. You followed the guy, you shoved him and I would say that HIS actions were reasonable considering the situation and the appearance that you were being aggressive and he feared you were about to assault him. He is permitted to use physical force to prevent/terminate an assault against him.

Considering the situation (which at the time seemed to be only a bloody nose), the police were probably trying to dissuade you from pursuing the matter. You seem not to know if the other guy had a physical injury, which is a basic requirement of an assault.

Based on the facts as you presented them, even if the other guy was arrested and charged with Assault 3rd degree, it wouldn't go anywhere considering YOUR actions which precipitated the confrontation.

At this point I would just forget about it - there doesn't seem to be a whole lot more to tell you.

 

[adjusterjack]

I gave similar answers on another site.

 

[adjusterjack]

There is no such thing as "battery" in New York

Sure there is.

It's in lower Manhattan.

 

[cbg]

Fine, you shoved him.

You were still the first one to make contact.

 

[army judge]

Lyrics: You've got to know when to hold 'em / Know when to fold 'em / Know when to walk away / And know when to run…

 

[mightymoose]

Agreed. As you describe it you were the aggressor. You want to minimize your action as a shove, but it really is no different than throwing a punch.
I too would have arrested both of you if presented this situation. Both of you were wrong in your actions, but you clearly pursued him and became the aggressor.

As for charges, that is not something you get to decide. If you made a police report you are at the mercy of the system as to how things proceed.
If you know the identity of this other person you could sue in civil court for any damages/medical bills you have, but given the circumstances you describe I would not expect much sympathy from the court.

 

[army judge]

I shoved him, but he threw the first punch.

When he spat in your face, or upon your person, had you simply followed the instructions of your seat mates, you'd be golden.

That was the crime, had the police been able to find the nasty freak, which could have landed him on Rikers Island.

Your fellow travelers restrained you, but when you bolted away, located the nasty spitter, then confronted him, the tables turned.

If only someone had taken a couple pictures of the spitter, or had you convinced the police to collect his DNA in the spittle on your face, this could have had the result you desired.

Alas, your agitated emotion overruled your ability to reason, and you can tell the tale of the spitter who got away.

This NY licensed attorney explains it all for you, mate:


NY PL 240.30 Aggravated Harassment: When Spitting on Another is both Criminal and Non Criminal

 

[Highwayman]

Judge, I hate correcting you but I have to clarify a few things...

That was the crime, had the police been able to find the nasty freak, which could have landed him on Rikers Island.

No way, no how. The offense committed was a mere violation, not a crime. An arrest would not be made unless the perpetrator could not provide valid identification, other wise it would simply result in a criminal summons being issued and ONLY if the offense had occurred in the presence of the police.

Even if the perp WAS arrested, he would be arraigned anywhere from a few to 20 hours after his arrest and would be ROR'd by a judge. That's life in the Big City.

If only someone had taken a couple pictures of the spitter, or had you convinced the police to collect his DNA in the spittle on your face, this could have had the result you desired.

While this is good in theory, there is no way there would be any DNA test done for a Penal Law violation (as opposed to a crime).

This NY licensed attorney explains it all for you, mate:

NY PL 240.30 Aggravated Harassment: When Spitting on Another is both Criminal and Non Criminal

I skimmed this article and while it was very interesting reading it does not apply in this case. Mere spitting with no other aggravating factors is simply Harassment, not Aggravated Harassment.

Just to add... the law we read on paper is often very different than what we see in the court room and on the street (and I'm sure that YOU know this better than most), where something like punching and causing a physical injury to a police officer during an arrest (a felony assault) results in a plea of guilty to Harassment with a sentence of a $300 fine and the requirement to take an anger management class.

 

[army judge]

Judge, I hate correcting you but I have to clarify a few things...



No way, no how. The offense committed was a mere violation, not a crime. An arrest would not be made unless the perpetrator could not provide valid identification, other wise it would simply result in a criminal summons being issued and ONLY if the offense had occurred in the presence of the police.

Even if the perp WAS arrested, he would be arraigned anywhere from a few to 20 hours after his arrest and would be ROR'd by a judge. That's life in the Big City.



While this is good in theory, there is no way there would be any DNA test done for a Penal Law violation (as opposed to a crime).



I skimmed this article and while it was very interesting reading it does not apply in this case. Mere spitting with no other aggravating factors is simply Harassment, not Aggravated Harassment.

Just to add... the law we read on paper is often very different than what we see in the court room and on the street (and I'm sure that YOU know this better than most), where something like punching and causing a physical injury to a police officer during an arrest (a felony assault) results in a plea of guilty to Harassment with a sentence of a $300 fine and the requirement to take an anger management class.

Noted, and in NYC, the spitter could have been the shitter, the pisser, and probably have garnered little interest of the police, assuming one could be available with a few minute sof the alleged incident.

The bigger point I was attempting to make, and should have said so directly is that "self help" remedies rarely end well for the actor.

The OP would have been in a better position to report the alleged crime had he NOT attempted his version of hot pursuit. which left him looking like a vigilante, stalker, or hothead.

Up until he left his seat and gave chase, he may have been the classic victim.

However, hot pursuit of freaks, deviates, crackpots, mentally deranged, or criminally insane perps is a job best left to the people sworn to serve and protect.

Realistically, the guy would have had to emptied a clip into the OP, stabbed him a dozen times with a "pig sticker", poured a gallon of sulfuric acid over his head, dumped a "jerry can" of gasoline on him while tossing a cigar torch into the excess liquid, a victim with massive amounts of melanin attacked by an evil perp lacking melanin, perhaps an "undocumented worker" from countries south of the Rio Grande, maybe someone not fond of gender related pronouns victimized a straight guy who lacked melanin from Texas, or a practitioner of the religion of peace to get the prosecutor to be interested in the crime in NYC.