On numerous occasions I have addressed how prosecutors can overcharge crimes or think out of the box to get to a particular result. Sometimes it is warranted and other times it is not. Similarly, sometimes the end result is proper while other times it is a violation of the law. One of the areas where prosecutors get creative is in the arena of New York weapon crimes. More specifically, when an accused uses a dangerous instrument. Not necessarily unique to this area of law, one of the reason why New York criminal lawyers often see Assistant District Attorneys handling cases in this way is because if a defendant commits a misdemeanor Assault (Third Degree Assault pursuant to New York Penal Law 120.00) and does so with a dangerous instrument, the crime can be kicked up to a felony assault (Second Degree Assault pursuant to New York Penal Law 120.05). Similarly, even if a defendant acts recklessly and causes a serious physical injury with a dangerous instrument (not intentionally) felony conduct could be prosecuted. Why does all of this matter? Not only is a felony a more serious crime in terms of a criminal record, but a misdemeanor offense is punishable by as much one year in jail while the felony crime is punishable by up to seven years in prison.
In People v. McElroy, 55-2013, NYLJ 1202644557795 (Sup., Kings Ct’y Decided February 20, 2014) the defendant, who was intoxicated at the time, got into a fare dispute with a taxicab driver. The defendant paid the fare with a credit card, then exited the vehicle without signing the credit card receipt. The driver also exited and blocked defendant’s movement with outstretched arms insisting that defendant sign the receipt. Evidence at trial showed that defendant refused to sign and instead punched the driver in the head once or twice. The driver fell backwards, hit his head on the concrete sidewalk, and sustained fractures and severe brain injury. At the time of this decision, the driver was on life support and unresponsive. The jury convicted defendant of Assault in the Second Degree, by recklessly causing serious physical injury by means of a dangerous instrument (Penal Law §120.05(4)). The defendant appealed.