Articles Posted in Assault

This is an appeal from the judgments of the Supreme Court, Bronx County, rendered March 26, 1992, convicting each defendant of two counts of robbery in the first degree, and one count each of assault in the first degree, grand larceny in the third degree, and criminal possession of stolen property in the third degree, and sentencing each defendant (Defendant-Appellant as a second violent felony offender and the other Defendant-Appellant as a second felony offender) to concurrent terms of 12 1/2 to 25 years, 12 1/2 to 25 years, 7 1/2 to 15 years, 3 to 6 years, and 3 to 6 years, respectively, unanimously modified, on the law, to the extent of reducing each defendant’s conviction of grand larceny in the third degree to grand larceny in the fourth degree, and reducing each defendant’s conviction of criminal possession of stolen property in the third degree to criminal possession of stolen property in the fourth degree, and reducing each defendant’s sentence on each of those counts to 2 to 4 years.

The issue in this case is whether the court erred in convicting the defendant.

The Court held that, except as discussed infra, the jury’s verdicts were neither based on insufficient evidence nor were they against the weight of the evidence. Specifically, there was ample evidence that defendants’ use of force was for the purpose of taking property, in that car keys were taken during defendants’ sudden, unprovoked assault upon the victims, notwithstanding that the car itself was not taken until shortly thereafter. However, there was insufficient evidence that the car’s value was over $3000, and we accordingly modify by reducing the convictions of grand larceny and criminal possession of stolen property from third to fourth degree. In view of the remaining concurrent sentences, we see no need to remand for resentencing, and instead reduce the sentence on each of the reduced counts to 2 to 4 years.

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On April 27, 1942, the defendant appearing with counsel pleaded not guilty to the following indictments: First count, robbery 1st degree; Second count, grant larceny 2nd degree; Third count, assault 2nd degree; Fourth count, robbery 1st degree; Fifth county, grand larceny 1st degree; Sixth count, assault 2nd degree; Seventh count, attempted rape 1st degree; Eighth count, assault 2nd degree. 2) Indictment No. 28704b–First count, attempted rape 1st degree; Second count, attempted rape 2nd degree; Third count, abduction; Fourth count, assault 2nd degree. 3) Indictment No. 28704c–First count, robbery 1st degree; Second count, assault 2nd degree; Third count, grand larceny 1st degree.4) Indictment No. 28704d–First count, robbery 1st degree; Second count, grand larceny 1st degree; Third count, assault 2nd degree; Fourth count, sodomy; Fifth count, assault 2nd degree.5) Indictment No. 28704e–First count, sodomy; Second count, assault 2nd degree.

A Kings Grand Larceny Lawyer said that, on May 2, 1942, a motion to have the criminal defendant committed to Kings County Hospital for psychiatric examination was denied. A similar motion was made and denied on May 4, 1942, by the Judge who at the same time granted over the objection of the defendant the District Attorney’s motion to consolidate the five indictments pursuant to section 279 of the Code of Criminal Procedure. On May 11, 1942, the defendant pleaded guilty before the same judge to each count of indictment numbers 28704a, 28704b, 28704c, 28704d and 28704e, and was then committed to Kings County Hospital for psychiatric examination. On May 25, 1942, the psychiatric report, finding the defendant not insane, not mentally defective, and capable of understanding the charge and proceedings against him and of making his defense, was confirmed and the Judge sentenced the defendant to Prison as follows:

1) On Indictment No. 28704a, for a term of not less than 15 years and not more than 30 years on counts 1, 2 and 3; for a term of not less than 15 and not more than 30 years on counts 4, 5 and 6; and for a term of not less than 5 years and not more than 10 years on counts 7 and 8.; 2) On Indictment No. 28704b, for a term of not less than 5 years and not more than 10 years on counts 1, 2, 3 and 4. This sentence to run consecutively with the expiration of the sentence imposed on indictment No. 28704a.; 3) On Indictment No. 28704c, for a term of not less than 15 years and not more than 30 years on counts 1, 2 and 3. This sentence to run consecutively at the expiration of the sentence imposed on indictment No. 28704b (and indictment No. 28704a); 4) On Indictment No. 28704d, for a term of not less than 7 1/2 years and not more than 15 years on counts 1, 2 and 3, and for a term of not less than 10 years and not more than 20 years on counts 4 and 5. This sentence to run consecutively at the expiration of the sentence imposed on indictment 28704c (and indictment numbers 28704a and 28704b); 5) On Indictment No. 28704e, for a term of not less than 10 years and not more than 20 years on counts 1 and 2. This sentence to run consecutively at the expiration of the sentence imposed on indictment No. 28704d (and indictment numbers 28704a, 28704b and 28704c).

At some point in September, a police officer had an argument with a man with regards to the servicing of the officer’s beeper. The two had a verbal argument inside the man’s store and the man told the officer to leave. According to the man, he did not strike or threaten the officer. Nevertheless, the police officer calls for other authority to come to the store. When uniformed officers arrived at the scene, the police officer told them that she was also a police and she wanted the officers to arrest the man. The uniformed officers therefore complied. At the time of the incident, the police officer was not in uniform and was not working a tour of duty.

After the man was released from jail, he received an electronic page requesting him to call the police officer’s cousin. During the telephone conversation, the police officer’s cousin told the man that the police officer would be willing to drop the assault charge if the man will paid her $5000. After some negotiation, the police officer’s cousin and the man agreed upon $3000 as the price for dropping the charge. Later that day, the man contacted some detectives and enlisted their assistance in the matter.

Subsequently, the man meet-up with the offenders after they discussed the payment and the agreement about the charge. At the scene, the police officer placed a telephone call in which she allegedly spoke with an unidentified person about dropping the charges. The man then gave $3000 to another individual while the police officer was standing nearby during the exchange. The aforementioned transaction was then monitored by the agents. Consequently, the police officer and her colleague were arrested at the scene, immediately following the exchange.

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One evening, the complainant was working in a grocery store when he became involved in a dispute with his employer, one of the respondents, over the payment of back wages. After all of the customers had left the store, manager instructed another employee, to lock the door. Respondents then allegedly attacked the complainant, beating and kicking him with their hands and feet, and assaulting him with various weapons. According to the complainant, during the course of the assault he was hit in the head with a gun by one of the respondents, another hit him in the face and forehead with a closed knife, and the other hit him in the head and back of the neck with a stick. The complainant lost consciousness and suffered injuries which included a broken facial bone. All four assailants were subsequently arrested and indicted on charges, inter alia, of having acted in concert to commit one count of assault in the second degree by use of a dangerous instrument, and one count of menacing in the second degree.

A Kings County Criminal Lawyer said that after inspecting and reviewing the grand jury minutes, the Supreme Court dismissed the assault and menacing counts of the indictment, concluding that they were duplicitous. Although the court thereafter granted the People’s motion for leave to reargue, it adhered to its determination dismissing the assault and menacing counts. In support of its conclusion that the counts were duplicitous, the court noted that the complainant had testified that three of the four defendants assaulted him with different weapons during the attack, and that each weapon caused discrete physical injuries to different parts of his body. The court also reasoned that the assault count had been submitted to the grand jury “in a manner which did not require 12 or more grand jurors to find that any particular item was the instrumentality which caused the complainant’s physical injury.” During the pendency of the People’s appeal from the order made upon reargument, the Supreme Court, sua sponte, reconsidered the issues raised by the parties’ prior motions, and adhered to the determination made in that order. There was no drug found and Burglary was not involved.

The Supreme Court disagreed with the court’s conclusion that the subject counts are duplicitous, reverse the determination in the order made upon reargument, and reinstate the first and third counts of the indictment. Each count of an indictment may charge only one offense, and a count which charges the commission of a particular offense occurring repeatedly during a designated period of time is duplicitous. The requirement that separate counts of an indictment charge no more than one offense serves to ensure that a defendant is provided with “fair notice of the charges against him so that he can defend himself and establish the defense of double jeopardy if an attempt is made to reprosecute him after acquittal or conviction of those charges”. Prohibiting duplicitous counts also prevents the possibility that individual jurors might vote to convict a defendant of a count on the basis of different offenses, thus permitting a conviction even though no unanimous verdict has been reached.

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On March 4, 2009, a woman and her sons (hereinafter collectively the respondents) filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against the appellant, the woman’s mother and her sons’ grandmother. The alleged family offenses included assault, harassment, and menacing. In their respective petitions, the respondents described how they were related to the appellant and asserted that the parties all resided together in a home in Nassau County. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla. According to the respondent children, their grandmother pushed their mother to the floor twice, causing her to hurt her back and hit her head. The grandmother allegedly was screaming, yelling, and cursing at the woman during the criminal assault. In addition, the grandmother allegedly used a glass bowl to strike a child on the head, causing injuries. Further, the grandmother allegedly chased the younger son with a meat cleaver and threw an ashtray at him, which hit him in the back.

Thereafter, on March 6, 2009, the appellant grandmother filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. She alleged that on or about February 14, 2009, also in Anguilla, her daughter and her grandsons committed the family offenses of aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree. Domestic violence all.

During an initial appearance before the Family Court, the grandmother’s counsel objected to the court’s exercise of subject matter jurisdiction because the alleged offenses occurred in Anguilla. The Family Court held that the fact that the event took place in the West Indies is no different from it taking place in Pennsylvania, Virginia, or Vermont. They’re all residents of Nassau County and they’re entitled to protection from future occurrences. Family Orders of Protection are to prevent further hostility and further assault, attempted assault, etc.

A Nassau Criminal Lawyer said that, respondent has been charged with assault in the third degree. This criminal prosecution is pending in the District Court, Nassau County. The complaining witness has commenced a civil action against the County of Nassau alleging, inter alia, that respondent’s alleged assault on her was accomplished with the “knowledge and acquiescence of the County of Nassau”. This civil action is pending in the Supreme Court, Nassau County. domestic violence was not involved.

In the course of defending the County of Nassau in connection with the civil action, a representative of the County Attorney asked the Nassau County Police Department to conduct an “internal investigation”. It is clear that the materials gathered during the course of the internal investigation were segregated from the materials generated by County police officers in the course of their investigation into the criminal complaint. It is also clear that “the results of the civil investigation were forwarded to the County Attorney’s Office for its use in defending the County of Nassau”. Grand Larceny was not an issue.

A Nassau Assault Lawyer said that, during the course of the criminal prosecution of respondent, the District Court issued two subpoenas duces tecum, the first at the request of the District Attorney, the second at the request of the attorney for the respondent. Both of these subpoenas were aimed at the internal investigation file maintained by the County of Nassau in connection with its defense of the civil action. The Countys application to quash the first subpoena was granted by the District Court in an order dated February 11, 1991. No appeal was taken from that order.

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Defendant was charged, in a felony complaint, inter alia, with Robbery in the first Degree and Criminal Possession of a Weapon in the Second Degree. Thereafter, upon learning that the People were about to present evidence to a grand jury, defendant gave notice of his intent to appear and testify before that body. Defendant’s attorney sent a handwritten letter to the People, confirming an earlier conversation, stating that since the People were presenting only the weapon charge, defendant requests that he be permitted to sign a waiver of immunity only as to this charge. Defense counsel also asked for a judicial ruling if the People failed to grant this request. Later, the People sent a letter to defense counsel stating that, in confirmation of an earlier conversation, it was understood that defendant did not wish to testify if only the weapon charge was presented. Accordingly, only this charge was presented to the grand jury and an indictment was voted charging defendant with Criminal Possession of a Weapon in the Third Degree.

A Kings County criminal attorney said that the People maintain that defense counsel’s letter misconstrued their initial oral conversation and that the parties had a second oral conversation after counsel’s letter where they resolved their misunderstanding. The People further contend that their letter reflected the agreement reached at this subsequent conversation. Defendant, however, does not admit that any second conversation occurred. Rather, defendant asserts that the People’s letter was written in response to their initial conversation and incorrectly stated defendant’s position.

The issue to be resolved in this case is whether a defendant is entitled, as a matter of right, to testify under a “limited” waiver of immunity 2 is subject to divergent views by nisi prius courts.