| People v McElroy |
| 2016 NY Slip Op 03897 [139 AD3d 980] |
| May 18, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Andrew McElroy, Respondent. |
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and JoyceSlevin of counsel), for appellant.
Lynn W. L. Fahey, New York, NY (Joshua M. Levine of counsel), forrespondent.
Appeal by the People, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Gary, J.), dated February 20, 2014, as granted that branchof the defendant's motion which was pursuant to CPL 330.30 (1) to reduce his convictionof assault in the second degree to assault in the third degree.
Ordered that the order is affirmed insofar as appealed from.
The evidence at trial established that, in the early morning hours of January 1, 2013,the defendant, who was intoxicated, was a passenger in a taxicab operated by Key Kim.The defendant and Kim had a disagreement about the fare, and after the defendant'scredit card was charged for the trip, the defendant refused to sign the credit card receiptor provide a tip. Kim followed the defendant out of the cab and confronted him on thesidewalk. When Kim blocked the defendant's path and grabbed the lapels of thedefendant's coat, the defendant punched him in the face, causing him to fall backwardsand strike his head on the sidewalk. As a result of the fall, Kim sustained severe braininjuries such that, by the time of trial, he remained unconscious and unable tocommunicate.
Following a jury trial, the defendant was convicted of assault in the second degreepursuant to Penal Law § 120.05 (4) for recklessly causing serious physicalinjury to Kim by means of a "dangerous instrument," namely, the sidewalk. Thedefendant moved, inter alia, pursuant to CPL 330.30 (1) to modify the verdict byreducing the conviction of assault in the second degree (Penal Law§ 120.05 [4]) to assault in the third degree (Penal Law§ 120.00 [2]), arguing that the evidence was legally insufficient to establishthat the sidewalk constituted a dangerous instrument. The Supreme Court granted thatbranch of the defendant's motion, holding that "[o]nly a purposeful use oremployment of an instrumentality can satisfy the statutory definition [of dangerousinstrument]" (People vMcElroy, 43 Misc 3d 558, 561 [Sup Ct, Kings County 2014] [emphasis added]).The People appeal.
A "dangerous instrument" is defined as "any instrument, article or substance. . . which, under the circumstances in which it is used. . . , is readily capable of causing death or other [*2]serious physical injury" (Penal Law § 10.00[13] [emphasis added]). To qualify as a dangerous instrument, an object need not beinherently dangerous (see People v Carter, 53 NY2d 113, 116 [1981]). "[T]hestatute states plainly that any 'instrument, article or substance', no matter how innocuousit may appear to be when used for its legitimate purpose, becomes a dangerousinstrument when it is used in a manner which renders it readily capable ofcausing serious physical injury" (id. at 116, quoting Penal Law§ 10.00 [13]).
Applying this "use-oriented approach" (People v Carter, 53 NY2d at 116),the Court of Appeals and this Court have held that a sidewalk or concrete surface can, incertain circumstances, be "used" as a dangerous instrument (see People v Galvin,65 NY2d 761, 763 [1985]; seealso People v Warren, 98 AD3d 634, 634 [2012]; People v Melville, 298AD2d 601, 601 [2002]). However, in each of these cases, the defendant was charged orconvicted of a crime defined by intentional conduct, whereas the defendant in this casewas convicted of a crime involving reckless conduct.
We agree with the People's interpretation of Penal Law § 120.05 (4)that the reckless mens rea must be read to modify the phrase "by means of. . . a dangerous instrument" (see Penal Law § 15.05[3]), and that the statute does not, as the Supreme Court held, require "purposeful use" ofthe dangerous instrument (see Penal Law § 15.15 [1]; see alsoPeople v Charles, 222 AD2d 687, 688 [1995]). However, we disagree with thePeople's contention that Penal Law § 120.05 (4) does not require that theserious physical injury be recklessly caused by the use of a dangerous instrument. Such areading of the statute ignores the definition of dangerous instrument, which expresslyfocuses on the circumstances in which the instrument is "used" (Penal Law§ 10.00 [13]), and the use-oriented approach that has evolved directly fromthat definition (see People v Carter, 53 NY2d at 116). Moreover, a person can"use" a dangerous instrument in a reckless manner (see e.g. People v Heier, 90 AD3d 1336, 1336-1337 [2011];People v Ryan, 55 AD3d960, 961 [2008]; People v Grenier, 250 AD2d 874, 875 [1998]; People vCameron, 123 AD2d 325, 325-326 [1986]). Therefore, a conviction under PenalLaw § 120.05 (4) requires legally sufficient evidence establishing that thedefendant recklessly "used" the dangerous instrument.
Here, viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), there was no valid line of reasoning andpermissible inferences that could lead a rational person to the conclusion that thedefendant recklessly used the sidewalk to cause serious physical injury to Kim. AlthoughKim's injuries were undoubtedly caused by his head striking the sidewalk, it cannot besaid that the defendant, in the act of punching Kim, "used" the sidewalk such that he was"aware of and consciously disregard[ed] a substantial and unjustified risk" (Penal Law§ 15.05 [3]) that the sidewalk was "readily capable of causing. . . serious physical injury" (Penal Law § 10.00 [13]).
Accordingly, the Supreme Court properly granted that branch of the defendant'smotion which was pursuant to CPL 330.30 (1) to reduce his conviction of assault in thesecond degree (Penal Law § 120.05 [4]) to assault in the third degree (PenalLaw § 120.00 [2]). Mastro, J.P., Chambers, Dickerson and Connolly, JJ.,concur. [Prior Case History: 43 Misc 3d 558.]