Attempted Assault & Minimum Standards in a New York Grand Jury Proceeding

Every New York criminal lawyer, from the “best” to the those who lag behind him or her, have one basic goal when representing their respective clients in an arrest for any crime. Certainly service is key, but most clients would be satisfied, if not elated, if his or her criminal attorney could obtained a dismissal of an indictment or misdemeanor information regardless of the service the attorney provided (I am not advocating poor service!). There are often numerous grounds for which a New York criminal defense attorney may seek dismissal. The Grand Jury presentation was not sufficient or the proceeding was tainted. Alternatively, the information or complaint contained hearsay or was not facially sufficient. If the case cannot be dismissed in its totality, the defense may seek to have the crime charged reduced to an attempt. The reason this is pursued is because an attempt to commit a particular crime in New York reduces the level or degree of the crime from what it would be if successfully completed.

In People v. Zacatenco-Romano, 10869-12, NYLJ 1202640266754, at *1 (Sup., KI, Decided January 22, 2014), the defendant motioned for dismissal of Attempted Assault in the First Degree (PL 110/120.10[1]) on the grounds that the Grand Jury evidence was insufficient. Seeking a dismissal as opposed to a reduction (you can’t attempt an a crime that you are accused of attempting), Zacatenco-Romano is still valuable in identifying what constitutes an attempt to commit an offense and what is sufficient before a Grand Jury in New York.

When determining whether the evidence presented was sufficient, the Court examined how that evidence established intent. In that regard, the Court recognized that a “defendant’s intent can ‘be inferred from the defendant’s conduct and the surrounding circumstances.'” Citing People v. Bracey, 41 NY2d 296). Here, the complainant testified not only did she defend herself, but that the defendant swung the knife at her head and it was his goal to put it through her head. Despite aiming for her head, fortunately for the complainant, the defendant merely struck her in her thumb.

Additional evidence established the defendant’s intent and his attempt to commit First Degree Assault. The Grand Jury heard evidence that the defendant did not only attack the complainant once, but repeatedly swung a knife at the complainant’s head and chest. “‘Whenever the acts of a person have gone to the extent of placing it in his power to commit the offense otherwise interrupted and nothing but such interruption prevents his commission of the offense, at least then he is guilty of an attempt to commit the offense'” (People v. Sullivan, 173 NY 122).

As noted above, challenging evidence before a Grand Jury is one avenue a criminal lawyer should pursue in an attempt to reduce or, as in this case, attempt to obtain a dismissal of criminal charges. The success of that motion is contingent upon the evidence before the Grand Jury and your counsel’s ability to find prior legal decisions supporting your position.

To educate yourself about the criminal process, the Grand Jury, violent New York Assault crimes, either follow the links found in this blog entry or go directly to the websites and bogs addressed below.

Saland Law PC, founded by two former New York County Assistant District Attorneys (Manhattan), represents clients in all criminal proceedings in the New York City area and immediately adjacent suburban communities.

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