People v. WarrenPeople v. Warren
The defendant was indicted for, inter alia, assault in the second degree based upon the complainant‘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 presented to the grand jury was insufficient in that it did not satisfy the element of the offense requiring proof of “injury . . . by means of . . . a dangerous instrument” (
“Courts assessing the sufficiency of the evidence before a grand jury must evaluate ‘whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction’ ” (People v Mills, 1 NY3d 269, 274-275 [2003], quoting People v Carroll, 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 Jessup, 90 AD3d 782 [2011]; People v Ackies, 79 AD3d 1050, 1055-1056 [2010]). Legally sufficient evidence is defined as “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant‘s commission thereof” (
The Penal Law provides that a person commits assault in the second degree when, “[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument” (
In interpreting the definition of the term “dangerous instrument,” New York courts have adopted a “use-oriented approach” (People v Carter, 53 NY2d 113, 116 [1981]). Accordingly, the Court of Appeals has explained, “any ‘instrument, article or substance‘, no matter how innocuous it may appear to be when used for its legitimate purpose, becomes a dangerous instrument when it is used in a manner which renders it readily
Here, the Supreme Court properly recognized that a concrete landing may be a dangerous instrument (see People v Galvin, 65 NY2d 761, 762-763 [1985]; People v Melville, 298 AD2d 601, 601-602 [2002]). However, it reasoned that, for concrete to be a dangerous instrument, there needed to be evidence that the defendant “intended to harm the victim 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 of inflicting the injuries,” the evidence supporting the charge of assault in the second degree was legally insufficient. However, the Court of Appeals’ recent interpretation of
In Muhammad, the Court confronted, in two cases joined for appeal, the question of whether verdicts were legally repugnant where the defendants were acquitted of weapon possession charges, but convicted of assault charges (see People v Muhammad, 17 NY3d 532 [2011]). The Court concluded that these verdicts were not repugnant “because the former crime contains an essential element that the latter does not: possession,” explaining that a defendant could “injure the victims ‘by means of’ the weapons . . . without possessing those instruments” (id. at 541-542, quoting
We note the standards at issue on this appeal.
In this case, we conclude only that there was legally sufficient evidence before the grand jury to satisfy the element of assault in the second degree requiring proof of “injury . . . by means of . . . a dangerous instrument” (
Accordingly, the Supreme Court, upon reargument, erred in adhering to its prior determination granting that branch of the defendant‘s motion which was to dismiss count one of the indictment, which alleged assault in the second degree, and thereupon dismissing that count of the indictment. Rivera, J.P., Eng, Hall and Sgroi, JJ., concur.