You are here: / / SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE.

SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE.

The Second Department determined, under the facts, the sidewalk was not “used” as a dangerous instrument by the defendant. The defendant punched the victim who then fell and struck his head on the sidewalk, suffering very serious injury. Although it is possible to intentionally or recklessly “use” a sidewalk as a dangerous instrument, here the sidewalk was not “used” by the defendant to cause injury withn the meaning of the assault statute (Penal Law 120.05(4)):

We agree with the People's interpretation of Penal Law § 120.05(4) that the reckless mens rea must be read to modify the phrase “by means of . . . a dangerous instrument” (see Penal Law § 15.05[3]), and that the statute does not, as the Supreme Court held, require “purposeful use” of the dangerous instrument (see Penal Law § 15.15[1]…). However, we disagree with the People's contention that Penal Law § 120.05(4) does not require that the serious physical injury be recklessly caused by the use of a dangerous instrument. Such a reading of the statute ignores the definition of dangerous instrument, which expressly focuses on the circumstances in which the instrument is “used” (Penal Law § 10.00[13]), and the use-oriented approach that has evolved directly from that definition … . Moreover, a person can “use” a dangerous instrument in a reckless manner … . Therefore, a conviction under Penal Law § 120.05(4) requires legally sufficient evidence establishing that the defendant recklessly “used” the dangerous instrument. People v McElroy, 2016 NY Slip Op 03897, 2nd Dept 5-18-16

CRIMINAL LAW (SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE)/ASSAULT (SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE)/DANGEROUS INSTRUMENT (SIDEWALK WAS NOT USED AS A DANGEROUS INSTRUMENT IN THIS ASSAULT CASE)

You might also like
SUBSEQUENT COMPLAINTS WHICH REPEAT THE ALLEGATIONS IN THE INITIAL COMPLAINT ARE “SUPPLEMENTAL,” NOT “AMENDED,” COMPLAINTS; DEFENDANT NEED ONLY ANSWER THE INITIAL COMPLAINT (SECOND DEPT).
Petition for Retention for Involuntary Psychiatric Treatment Granted
In an Appeal from an Order Made Upon Appellant’s Default, Only Matters Contested Below Can Be Heard—Here the Only Matter Contested Below Was Appellants’ Request for an Adjournment to Obtain New Counsel—Relevant Review Criteria Explained
THE LABOR LAW LIABILITY EXEMPTION FOR OWNERS OF ONE AND TWO FAMILY HOMES DOES NOT APPLY WHERE THE WORK HAS A COMMERCIAL PURPOSE, I.E., RENOVATION OF THE PROPERTY FOR SALE OR RENTAL; HERE THE DEFENDANTS DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER THE WORK WAS FOR A COMMERCIAL PURPOSE (SECOND DEPT). ​
DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS; DEFENDANT AVERRED HE WAS NOT INFORMED OF THE RISK OF DEPORTATION ASSOCIATED WITH THE PLEA (SECOND DEPT).
CORRIDOR FORMED BY LUMBER AND MATERIALS PILED ON EITHER SIDE WAS A PASSAGEWAY WITHIN THE MEANING OF THE INDUSTRIAL CODE, DEFENDANT LIABLE UNDER LABOR LAW 241 (6).
DEFENDANT DID NOT DEMONSTRATE PLAINTIFF BANK DID NOT HAVE STANDING TO BRING THE FORECLOSURE ACTION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
THE AFFIDAVIT SUBMITTED BY THE BANK TO PROVE STANDING TO FORECLOSE LAID AN ADEQUATE FOUNDATION FOR THE RELEVANT BUSINESS RECORDS BUT THE RECORDS THEMSELVES WERE NOT SUBMITTED, RENDERING THE AFFIDAVIT HEARSAY; THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISION OF THE MORTGAGE, A CONDITION PRECEDENT (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

FAILURE TO STRICTLY COMPLY WITH CONDITION-PRECEDENT NOTICE PROVISIONS IN THE... 33 HOUR DELAY IN ARRAIGNMENT, UNDER THE FACTS, DID NOT RENDER STATEMENT INVOLUNTARILY...