| People v Warren |
| 2012 NY Slip Op 05989 [98 AD3d 634] |
| August 15, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v AndrewWarren, Respondent. |
—[*1] Michael Colihan, Brooklyn, N.Y., for respondent.
Appeal by the People, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (D'Emic, J.), dated April 14, 2011, as, upon reargument, adhered to itsdetermination in an order of the same court dated January 4, 2011, granting that branch of thedefendant's motion which was to dismiss count one of the indictment on the ground that theevidence presented to the grand jury was legally insufficient.
Ordered that the order dated April 14, 2011, is reversed insofar as appealed from, on the law,upon reargument, the determination in the order dated January 4, 2011, granting that branch ofthe defendant's motion which was to dismiss count one of the indictment is vacated, that branchof the defendant's motion which was to dismiss count one of the indictment on the ground thatthe evidence presented to the grand jury was legally insufficient is denied, count one of theindictment is reinstated, and the matter is remitted to the Supreme Court, Kings County, forfurther proceedings on the indictment.
The defendant was indicted for, inter alia, assault in the second degree based upon thecomplainant's allegation that he threw her down a flight of stairs to the concrete landing below,injuring her. The defendant moved to dismiss this charge, contending that the evidence presentedto the grand jury was insufficient in that it did not satisfy the element of the offense requiringproof of "injury . . . by means of . . . a dangerous instrument" (PenalLaw § 120.05 [2]) because he did not employ the concrete landing as a dangerousinstrument within the meaning of the statute. The Supreme Court agreed, granted that branch ofthe motion, and dismissed that count of the indictment. Although the Supreme Court grantedleave to reargue, it adhered to that determination upon reargument. The People appeal from theorder made upon reargument, and we reverse that order insofar as appealed from.
"Courts assessing the sufficiency of the evidence before a grand jury must evaluate 'whetherthe evidence, viewed most favorably to the People, if unexplained anduncontradicted—and deferring all questions as to the weight or quality of theevidence—would warrant conviction' " (People v Mills, 1 NY3d 269, 274-275 [2003], quoting People vCarroll, 93 NY2d 564, 568 [1999]; see People v Bello, 92 NY2d 523, 525 [1998];People v Swamp, 84 NY2d 725, 730 [1995]; People v Manini, 79 NY2d 561,568-569 [1992]; People v Jennings, 69 NY2d 103, 114 [1986]; People v [*2]Jessup, 90 AD3d 782 [2011]; People v Ackies, 79 AD3d 1050,1055-1056 [2010]). Legally sufficient evidence is defined as "competent evidence which, ifaccepted as true, would establish every element of an offense charged and the defendant'scommission thereof" (CPL 70.10 [1]; see People v Mills, 1 NY3d at 274; People vBello, 92 NY2d at 525-526; People v Swamp, 84 NY2d at 730; People vManini, 79 NY2d at 568; People v Ackies, 79 AD3d at 1056). "In the context of aGrand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, notproof beyond a reasonable doubt" (People v Bello, 92 NY2d at 526; see People vDeegan, 69 NY2d 976, 978-979 [1987]; People v Jennings, 69 NY2d at 114). "Thereviewing court's inquiry is limited to 'whether the facts, if proven, and the inferences thatlogically flow from those facts supply proof of every element of the charged crimes,' and whether'the Grand Jury could rationally have drawn the guilty inference' " (People v Bello, 92NY2d at 526, quoting People v Deegan, 69 NY2d at 979; see People v Ackies, 79AD3d at 1056).
The Penal Law provides that a person commits assault in the second degree when, "[w]ithintent to cause physical injury to another person, he causes such injury to such person or to athird person by means of a deadly weapon or a dangerous instrument" (Penal Law § 120.05[2]). It defines "[d]angerous instrument" 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" (Penal Law § 10.00[13]).
In interpreting the definition of the term "dangerous instrument," New York courts haveadopted a "use-oriented approach" (People v Carter, 53 NY2d 113, 116 [1981]).Accordingly, the Court of Appeals has explained, "any 'instrument, article or substance', nomatter how innocuous it may appear to be when used for its legitimate purpose, becomes adangerous instrument when it is used in a manner which renders it readily capable of causingserious physical injury. The object itself need not be inherently dangerous. It is the temporary userather than the inherent vice of the object which brings it within the purview of the statute"(id. at 116, quoting Penal Law § 10.00 [13] [citation omitted]; see People vOwusu, 93 NY2d 398, 401 [1999]).
Here, the Supreme Court properly recognized that a concrete landing may be a dangerousinstrument (see People v Galvin, 65 NY2d 761, 762-763 [1985]; People vMelville, 298 AD2d 601, 601-602 [2002]). However, it reasoned that, for concrete to be adangerous instrument, there needed to be evidence that the defendant "intended to harm thevictim with [a] particular object" made from that concrete. It concluded that "[s]ince there [was]no showing that the defendant intended to possess and use the concrete for the purpose ofinflicting the injuries," the evidence supporting the charge of assault in the second degree waslegally insufficient. However, the Court of Appeals' recent interpretation of Penal Law §120.05 (2) in People v Muhammad(17 NY3d 532 [2011]) requires us to conclude that this determination was error.
In Muhammad, the Court confronted, in two cases joined for appeal, the question ofwhether verdicts were legally repugnant where the defendants were acquitted of weaponpossession charges, but convicted of assault charges (see People v Muhammad, 17 NY3d 532 [2011]). The Courtconcluded that these verdicts were not repugnant "because the former crime contains an essentialelement that the latter does not: possession," explaining that a defendant could "injure the victims'by means of' the weapons . . . without possessing those instruments" (id. at541-542, quoting Penal Law §§ 120.05 [2]; 120.10 [1]). Furthermore, given theprocedural posture of this case, the People are entitled to the favorable inference that, in allegedlythrowing the victim down the stairs, the defendant intended to injure her on the concrete landingbelow (see People v Mills, 1 NY3d at 274; People v Carroll, 93 NY2d at 568;People v Bello, 92 NY2d at 525; People v Deegan, 69 NY2d at 979; People vJessup, 90 AD3d at 782; People v Ackies, 79 AD3d at 1056).
We note the standards at issue on this appeal. CPL 190.65 (1) provides that "a grand jurymay indict a person for an offense when (a) the evidence before it is legally sufficient to [*3]establish that such person committed such offense . . .and (b) competent and admissible evidence before it provides reasonable cause to believe thatsuch person committed such offense." As indicated above, CPL 70.10 (1) defines legallysufficient evidence as "competent evidence which, if accepted as true, would establish everyelement of an offense charged and the defendant's commission thereof." CPL 70.10 (2) providesthat " '[r]easonable cause to believe that a person has committed an offense' exists when evidenceor information which appears reliable discloses facts or circumstances which are collectively ofsuch weight and persuasiveness as to convince a person of ordinary intelligence, judgment andexperience that it is reasonably likely that such offense was committed and that such personcommitted it."
In this case, we conclude only that there was legally sufficient evidence before the grand juryto satisfy the element of assault in the second degree requiring proof of "injury . . .by means of . . . a dangerous instrument" (Penal Law § 120.05 [2]), and thatcompetent and admissible evidence before the grand jury provided reasonable cause to believethat the defendant committed the offense of assault in the second degree. We emphasize thatlegal sufficiency in the context of a grand jury proceeding does not mean proof beyond areasonable doubt (see People v Bello, 92 NY2d at 526). At trial, the People will have theburden of presenting evidence to establish all elements of the crimes charged beyond areasonable doubt.
Accordingly, the Supreme Court, upon reargument, erred in adhering to its priordetermination granting that branch of the defendant's motion which was to dismiss count one ofthe indictment, which alleged assault in the second degree, and thereupon dismissing that countof the indictment. Rivera, J.P., Eng, Hall and Sgroi, JJ., concur.