New York Penal Law 120.05: Can One Punch Lead to a Felony Second Degree Assault

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.

“Dangerous Instrument” is defined by Penal Law §10.00(13), as 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 death or other serious physical injury.” Expanding upon the statutory definition, the Court of Appeals defined the term as “[a]ny instrument, article or substance, no matter how innocuous it may appear to be when it is used for legitimate purposes becomes a dangerous instrument when it is used in a manner which renders it capable of causing serious physical injury” People v. Carter, 53 NY2d 113, 116 (1981).  In determining whether an instrument is a “dangerous instrument,” the facts must show that the defendant actually used or employed the instrumentality in a purposeful manner.

Here, the Court ruled in favor of the defendant, reversing the jury’s conviction.  The facts of this case demonstrated that the defendant did not actually use the sidewalk as a dangerous instrument – rather it was a mere happenstance that the victim’s head hit the concrete sidewalk.  In coming to its decision, the Court wrote that if it were to hold in the People’s favor, then, conceivably, every instance where a victim is simply punched and consequently falls onto a NYC street and suffers further injury, could constitute intentional or reckless felony Assault.  This, the Court wrote, was not the intention of the Legislature when it enacted the statute.  Had the facts been different in this case and the defendant affirmatively used the sidewalk by striking defendant’s head against it, then the Court would be proper in upholding the jury’s conviction.  However, those are not the facts.  In conclusion, the evidence did not demonstrate that the defendant was aware of and used the sidewalk as a dangerous instrument – therefore, the defendant could not be guilty of Assault in the Second Degree, recklessly causing serious physical injury by means of a dangerous instrument.

To learn more about New York Assault crimes, what constitutes certain offenses, how degrees differ and other factors from defenses to elements, follow the appropriate links.

Established by New York criminal lawyers who served as prosecutors in the Manhattan District Attorney’s Office, the criminal defense attorneys at Crotty Saland PC represent clients accused of Assault and related violent crimes throughout the metropolitan New York region.

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