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Court Discusses Throwing Out Assault Charge


A man was indicted for assault in the first degree and for criminal possession of a loaded firearm as a felony. The man was accused of having assaulted another man by aiming and discharging a loaded pistol at him, with an intent to kill the other individual. At the close of the case, the counsel of the man requested the trial court to charge the jury with respect to assault in the second and third degrees, in addition to assault in the first degree. The court denied the request as it was to charge assault in the third degree. The jury found that the man is guilty of the gun crime and of assault in the second degree.

The court agrees in affirmation as to the conviction for possession of the firearm, but opposes and votes to reverse the judgment insofar. A New York Criminal Lawyer said the judge giving the opinion that, under the circumstances of the case, the trial court committed reversible error in refusing the man’s request to charge assault in the third degree. The evidence tends to establish that the man and the victim of the assault, together with several other companions, who had been drinking in a bar for several hours prior to the incident. When the abovementioned bar closed for the night, the group proceeded across the street and commenced horsing around. The victim testified that he was pretty high at the time of the incident. The behavior engaged in were variously described as kidding around, carrying on, wrestling and grabbing each other, and rolling on the ground. There came a time when the man allegedly drew a pistol and fired it, wounding the victim. The record is barren of evidence which would tend to establish a motive or provocation for the assault. The testimony of the victim, his brother and several other companions is to the consequence that the man drew a pistol, aimed it at the victim and fired. The description of the assault by one of the companions differs materially from that of the others. One of the companions described the incident and stated that they were over there singing and cracking jokes when the man came and said a few words before the gun went off. The gun went off coming out from the man’s pocket. The witness further said that he had just seen the fire and he didn’t see the gun. Therefore, there can be no assurance for assault in the second degree because of the absent proof of the requisite intent. Although the testimony of the victim and the others, excluding one, is sufficient to support a conviction for assault in the second degree, the other companion’s testimony tends to establish that the gun went off accidentally as the man withdrew it from his pocket. The said testimony, coupled with the evidence that the group was intoxicated and the absence of evidence showing motive for the assault, would tend to negate the presence of the required intent. Under the said circumstances, the trial court should have charged the jury with respect to assault in the third degree, which requires no specific intent.

Based on records, it has been repeatedly written that if, upon any view of the facts, an offender could properly be found guilty of a lesser degree or an included crime then the trial judge must submit such lower offense. A Westchester County Criminal Lawyer does not matter how strongly the evidence points to guilt of the crime charged in the condemnation, or how unreasonable it would be, as a court may appraise the weight of the evidence, to find not guilty of that crime and convict of the less serious crime.

Crimes can happen anywhere and anytime to anyone. If one of your family members got into a trouble and believes that he is innocent of the crime he is being accused of, you can ask help from the Nassau County Criminal Lawyers. Whenever you need assistance for a sex crimes, theft charge or gun offense, the lawyers at Stephen Bilkis and Associates, don’t hesitate to come and ask help from the competent team.

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