New York Criminal Lawyer Blog
The top criminal defense attorneys in New York and New York City know there are many ways to “skin a cat” in order to achieve the best results for their clients in a criminal case. Sometimes we use “honey” and “sometimes” it is vinegar. A recent decision in Manhattan Criminal Court involving the charges of Assault in the Third Degree (Penal Law 120.00(1)) and Reckless Driving (Vehicle and Traffic Law 1212) strengthen the “vinegar” approach by adding another judicial decision to our criminal defense arsenal of cases to utilize in a client’s criminal defense.
In People v. Warmann DiPoumbi, 2008NY068631, decided April 28, 2009 and published in the New York Law Journal on May 7, 2009, a Manhattan Criminal Court Judge dismissed the charges of Assault and Reckless Driving based, in part, for facial insufficiency. The complaint alleged that the defendant drove through a stop sign without stopping. After the police stopped the defendant, the defendant opened the car door and the door struck the police officer causing “swelling and substantial pain.”
In dismissing the charge of Assault in the Third Degree, the Court noted that the People failed to establish both the intent of the defendant as we as the physical injury to the officer. Specifically the Court stated that:
“In this case, the complaint merely alleges that the defendant opened the taxicab door into the complainant’s arm causing ‘swelling and substantial pain.’ The requisite intent to cause physical injury cannot be inferred from the facts as alleged. In drafting the current assault statute, the Temporary Commission on Revision of the Penal Law and Criminal Code made it clear that ‘petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives, are not within the definition’ of the statute. Matter of Philip A, 49 NY2d at 200, quoting Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, at 330.”
“Furthermore, the injury alleged comes nowhere near the definition of “physical injury” which requires either “impairment of physical condition” or “substantial pain.” Nothing in the accusatory instrument alleges any impairment of the complainant’s use of his arm…”
The Court also asserted:
“Despite the fact that the complainant alleges that he suffered ‘substantial pain’ after the taxicab door hit his arm, there is no factual support for such allegation. The only injury alleged is a ‘swelling’ to the complainant’s arm. There is no allegation concerning the duration of the pain or the seriousness; nor does the complaint allege that any medical treatment was sought. People v. Oquendo, 134 A.D. 2d 203, 204 (1st Dep’t 1987)(dismissing a conviction for assault after trial where the injury consisted ‘entirely of pain experienced at the time of the commission of the crime,’ is of undetermined severity, with ‘no indication of any after affects’).”
The Court’s dismissal of the Reckless Driving charge hinged on the definition of “recklessness.” According to Penal Law Section 15.05(3), “[a] person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”
The Court explained:
“[G]uilt of this crime requires ‘something more than negligence.’ ‘Reckless driving . . . means the running or operation of an automobile under such circumstances as to show a reckless disregard of the consequences.’ People v. Grogan, 260 NY 138, 144 (1932). ‘Failure to come to a stop at a single stop sign and nothing more does not make out the crime of Reckless Driving. People v. Garo, 208 Misc 496, 498 (County Ct, Broom County 1955).'”
As noted above, the “vinegar” approach of gathering the legal evidence and vigorously attacking the case on facial insufficiency grounds won the day for this particular matter. In the event that the charges against any client fail to meet the legal standards required by law, Saland Law PC is ready and more than capable to zealously fight to protect our clients’ rights, liberty and integrity.