Governor Andrew Cuomo has signed into law bills S2991-A / A6772-A making an assault on a process server, among other professionals, a felony. The law will go into effect on November 1, 2016.
Adding “process server” to the list of those deserving special protection, an assault on a process server would become a class D Felony. An assault is when the person “inten[ds] to cause serious physical injury to another person, he causes such injury to such person or to a third person.”
NY combines both the crime of assault and battery into a single law. California, for instance, makes it a crime for assault (imminent threat and present ability to cause serious injury) and battery (the unlawful contact resulting in injury). Those statutes are found in Penal Code secs. 241 (assault) and 242 (battery).
This NY law does more than protecting process servers from an assault.
The law also amends NY Penal Law 120.05, adding a new sub-division 14:
With intent to prevent or obstruct a process server, as defined in Section eighty-nine-t of the general business law, from performing a Lawful duty pursuant to article three of the civil practice law and Rules, or intentionally, as retaliation against such a process server For the performance of the process server’s duties pursuant to such Article, including by means of releasing or failing to control an animal Evincing the actor’s intent that the animal prevent or obstruct the Lawful duty of the process server or as retaliation against the process Server, he or she causes physical injury to such process server.
It also appears to add a crime of obstructing a process server from performing a lawful duty of serving process, or in retaliation. This the 19th state and the Federal law which makes it a crime to obstruct service. (See a list of those laws here.) The law also further prohibits the use of an animal to obstruct or retaliate if the server sustains physical injury, implying that there is no obstruction or retaliation with an animal without an injury. Intimidation is OK, but not obstruction or retaliation without physical injury. There seems to be an unintended distinction between culpability between the assault resulting in “serious physical injury”, and the obstruction or retaliation with an animal resulting in “any physical injury”.
This is going to help NY process servers, and could spread to other states looking for an opportunity to pattern a similar law elsewhere.
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