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THE STATUTE WHICH CRIMINALIZES AN ASSAULT ON A PERSON 65 OR OLDER BY A PERSON MORE THAN TEN YEARS YOUNGER DOES NOT REQUIRE PROOF THE ASSAILANT KNEW THE AGE OF THE VICTIM (FOURTH DEPT).

The Fourth Department determined that the statute which criminalizes a younger person’s causing injury to a person 65 or older does not require proof that attacker know the victim is 65 or older:

Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 [12]). The conviction arises out of a physical altercation that occurred when defendant and his friend encountered the victim in the parking lot of a tavern shortly after the victim interacted with the friend’s girlfriend at the bar. At the time of the altercation, defendant was 31 years old and the victim was 69 years old. Defendant contends that County Court erred in determining that Penal Law § 120.05 (12) did not require the People to prove that he knew that the victim was 65 years of age or older. We reject that contention. * * *

Contrary to defendant’s contention, however, nothing in the statutory text requires that the actor know the age of the injured person; rather, by providing that the defendant must act “[w]ith intent to cause physical injury to a person who is [65] years of age or older” and must cause “such injury to such person,” the statute simply requires that the person whom the actor intentionally injures be, as a matter of fact, 65 years of age or older (§ 120.05 [12] [emphasis added]). That reading is consistent with the pattern Criminal Jury Instructions, which provide that the People must prove beyond a reasonable doubt that, with respect to the age element, the injured person was 65 years of age or older at the time of the crime (see CJI2d[NY] Penal Law § 120.05 [12]) . People v Burman, 2019 NY Slip Op 04820, Fourth Dept 6-14-19

 

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