Intent Must Exist Simultaneously with the Act/Accidental Discharge of a Firearm, Even Where the Shooter Intends to Assault the Victim, Does Not Constitute Intentional Assault/Loss of Police Officer’s Handwritten Notes Did Not Mandate Adverse Inference Jury Charge—Insufficient Showing of Prejudice

The First Department determined the trial court did not give the right response to a question from the jury and reversed the intentional assault conviction.  The jury asked whether a person who intends to commit assault is guilty of intentional assault if the gun goes off accidentally.  The trial court answered “yes.”  The First Department determined the answer should have been “no” because the intent must be simultaneous with the act.  The First Department further determined that the loss of the police officer’s handwritten notes was a Brady/Rosario violation, but the defendant failed to demonstrate prejudice flowing from the loss:

We agree with defendant that the court’s response erroneously allowed the jury to find defendant guilty of intentional assault without finding that the intent element of that crime existed beyond a reasonable doubt. “It is a well-established rule of law that the intent to commit a crime must be present at the time the criminal act takes place” … . The intent element is not satisfied if, as in the jury’s hypothetical, the individual does not intend to pull the trigger at the moment the gun discharges. While those facts might have supported liability for a crime requiring a lesser mens rea than acting intentionally, defendant here was not charged with such a crime. Because the court’s response to the jury’s note incorrectly signaled that an accidental firing of the gun could support a conviction for intentional assault, the conviction on that count must be reversed. People v Lee, 2014 NY Slip Op 02507, 1st Dept 4-10-14