THE ASSAULT SECOND CONVICTION WAS REVERSED BECAUSE PROOF A BAMBOO STICK WAS A “DANGEROUS INSTRUMENT” WAS LEGALLY INSUFFICIENT; ASSAULT THIRD CONVICTION VACATED AS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND (SECOND DEPT).
The Second Department determined the assault second conviction was not supported by legally sufficient evidence that a bamboo stick was a “dangerous instrument:”
The defendant … contends that the evidence was legally insufficient to support her convictions of assault in the second degree pursuant to Penal Law § 120.05(2) … and criminal possession of a weapon in the fourth degree based on the People’s theory that a bamboo stick the defendant used to discipline the child was a dangerous instrument. Although the defendant’s contention is unpreserved for appellate review (see CPL 470.05[2]), we reach the issue in the exercise our interest of justice jurisdiction (see id. § 470.15[6][a]). A “dangerous instrument” is defined as “any instrument . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (Penal Law § 10.00[13]). “Serious physical injury” is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10]). Here, viewing the evidence in the light most favorable to the prosecution, it was legally insufficient to establish that the bamboo stick, which was not produced at trial, “was readily capable of killing or maiming [the child], or of causing any of the other severe harms described in Penal Law § 10.00(10)” … .
Further, the defendant’s conviction of assault in the third degree pursuant to Penal Law § 120.00(1) must be vacated, and that count of the indictment dismissed, as an inclusory concurrent count of assault in the second degree pursuant to Penal Law § 120.05(9) … . People v Weng, 2023 NY Slip Op 02134, Second Dept 4-26-23
Practice Point: Here the assault second conviction was not supported by legally sufficient proof a bamboo stick was a “dangerous instruction.” The assault third conviction was vacated as an inclusory concurrent count of assault second.