New York Assault Crimes: Can You be Charged with an Intentional and Reckless Crime for the Same Act

Prosecutors routinely (for better or worse) throw every charge they can at a defendant with the hope that something sticks. Maybe the evidence is overwhelming.  Maybe…not so much. Whatever the charges or allegations may, if one count cannot be proven beyond a reasonable doubt, maybe another can. It is one thing for a prosecutor to charge different crimes (for example, charging an individual for possessing a weapon and using it or stealing money and possessing the same). However, can prosecutors charge different theories of one’s mental state? More specifically, can a defendant be charged with both intentional and reckless acts in the same complaint, for the same act?  In People v. Alejo, NYLJ 1202644557857 (Crim., BX, Decided February 19, 2014), the Supreme Court answered that question with a resounding “yes.”

The evidence in Alejo case established that Police Officer Gelband observed the defendant, who was driving a motor bike, weaving in and out of traffic and around pedestrians, driving the wrong way, and ignoring stop signs.  The facts also showed that pedestrians ceased walking on the street whenever the defendant drove near them.  Finally, when the officer instructed the defendant to stop driving, the defendant ran over the officer’s foot causing injury to his foot, as well as causing the officer to experience annoyance, alarm and fear.  As a result of his actions, defendant was charged with two counts of Assault in the Third Degree (PL Sec. 120.00(1) and (2)), and one count each of Reckless Endangerment in the Second Degree (PL Sec. 120.20), Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01(2)), Harassment in the Second Degree (PL Sec. 240.26(1)), and Disorderly Conduct (PL Sec. 240.20(7)).

The focus of this court started with the statutory definition of each charge:

  1. Assault in the Third Degree in violation of PL Sec. 120.00(1), which states that “(w)ith intent to cause physical injury to another person, [defendant] causes such injury to such person”;
  2. Assault in the Third Degree in violation of PL Sec. 120.00(2), which states that “[defendant] recklessly causes physical injury to another person”;
  3.  Reckless Endangerment in the Second Degree, which requires that a defendant “recklessly engage(s) in conduct which creates a substantial risk of serious physical injury to another person”;
  4. Criminal Possession of a Weapon in the Fourth Degree states that “[defendant] possesses…any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another”;
  5. Harassment in the Second Degree states “with intent to harass, annoy or alarm another person…(1) [defendant] strikes, shoves, kicks or otherwise subjects such other person to physical contact”; and
  6. Disorderly Conduct states that a defendant “recklessly creating a risk thereof…(7)…creates a hazardous or physically offensive condition by any act which serves no legitimate purpose

(emphasis added in all).

The defendant brought a motion to dismiss all charges on the ground that the complaint was improper due to the conflicting mental states of intent and recklessness based on the same underlying conduct.  Essentially, defendant argued that one who acts intentionally, cannot at the same time act recklessly (People v. Gallagher, 69 N.Y.2d 525 (1987)).  Here, the Court disagreed.

The Court, in its decision, wrote that defendants may be charged with crimes of intent and recklessness; however, after the facts are presented to the jury, “only charges supporting either reckless or intention mental state may be submitted to the jury for their consideration – not both.”  With that being said, there is evidence to support a view that the act of running over the police officer’s foot after being directed to stop was intentional. However, there is another equally viable view that such an act was reckless, particularly if there was evidence presented that the Defendant did not hear the directive to stop.

Therefore, the court held that the complaint was proper as the facts of the case were sufficient to the allegations.  Thus, the decision regarding what charges will be submitted to the jury should be left to the trial court, after a proper hearing.

To educate yourself on the New York Penal Law and the potential criminal charges that you may face, go directly to or follow any of the links provided here.

Established by former Manhattan Assistant District Attorney’s the former Manhattan and Federal prosecutors and New York criminal lawyers at Saland Law PC represent clients in all criminal matters in the City, State and Federal Courts located in and around the New York City region.

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