Making a Misdemeanor Assault in the Third Degree a Second Degree Felony in New York: When an Object Becomes a “Dangerous Instrument” & a Weapon

As I have noted in earlier entries, a misdemeanor Assault in the Third Degree (New York Penal Law 120.00) can be “bumped up” to a felony Assault in the Second Degree (New York Penal Law 120.05(2)) if the alleged perpetrator uses a “dangerous instrument.” As a New York criminal defense attorney and former Manhattan prosecutor, I have seen various non-threatening items qualify as “dangerous instruments” where there is really nothing dangerous about them. Unfortunately, even these items, if used in the violent context, can mean the difference between facing up to one year in jail or seven years in state prison.

Briefly, pursuant to New York Penal Law 120.00(1), if a person intentionally causes physical injury to another (substantial pain or physical impairment), then that person is likely guilty of this misdemeanor. However, if a person uses a “deadly weapon” or a “dangerous instrument,” then the crime becomes more serious even if the injury is the exact same. Pursuant to Assault in the Second Degree, New York Penal Law 120.05(2), a person is guilty of this crime when he or she intends to cause physical injury to another person by using a “deadly weapon” or “dangerous instrument.”

Defining Dangerous Instrument

The law defines “dangerous instrument” as any type of object or substance. “Dangerous instrument” means any instrument, article or substance, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing a serious physical injury or even death.

A question that New York criminal defense lawyers, prosecutors and judges often face, however, is for practical purposes, what type of instrument fits this definition? A shoe? A garbage pail? A knife? How about a Sony Playstation?

While it might seem comical to ask such a hypothetical, a Richmand County (Staten Island) Criminal Court Judge just ruled on this exact issue. In People v. Jermaine Scott, 2010RI002291, the defendant was alleged to have intentionally struck a woman on her head with the Sony Playstation gaming console during a fight. After reviewing the law, the court found that the Playstation console was a dangerous instrument in this context. The court reasoned:

“It is…the manner in which the instrument is used, not its inherent nature, which makes an object a dangerous instrument. People v. Carter, 53 N.Y.2d 113 (1981); People v. Wilkerson, 184 Misc.2d 949 (Crim. Ct. New York Co. 2000). An innocuous object intentionally used to injure or kill is, therefore, a dangerous instrument pursuant to statute. People v. Krotoszynski, 43 A.D.3d 450 (2nd Dept. 2007) (television remote control used as a dangerous instrument).”

Obviously, the law is clear. The instrument in question need not be a gun or a knife, but something less threatening in nature as long as it is capable of and threatened to be used in a manner to cause serious physical injury or death.

For additional information on the laws regarding New York Assault crimes and New York Weapon laws, please follow the highlighted links. Additional information ranging from legal decisions to statutes can be found on the New York Criminal Lawyer Blog at NewYorkCriminalLawyerBlog.Com

Founded by two New York criminal defense lawyers and former Manhattan prosecutors, Crotty Saland PC represents clients from criminal investigations and arrests through hearings and trials in New York City and the suburban counties.

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