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THE PROOF THAT THE SUBWAY TRACKS WERE USED AS A DANGEROUS INSTRUMENT WAS LEGALLY INSUFFICIENT; DEFENDANT’S ASSAULT SECOND CONVICTION VACATED (FIRST DEPT).

The First Department, vacating the assault second as a hate crime conviction, determined the proof did not support the theory that the subway tracks were used as a dangerous instrument:

The theory supporting this count was not that defendant intended to use the electrified third rail or a moving train as a dangerous instrument, or acted recklessly, but instead that defendant intended that the victim be injured by striking the tracks, alleged to be a “hard object.” The evidence failed to establish defendant’s intent to use the tracks in that manner. The People’s evidence, including the victim’s testimony and a blurry video, was consistent with the victim merely tripping and falling onto the tracks during an altercation with defendant … . Moreover, even if defendant merely caused the victim to fall on the tracks, that would not establish the specific intent required for this conviction. For similar reasons, we find that the verdict on this count was against the weight of the evidence. People v Ames, 2023 NY Slip Op 03205, First Dept 6-13-23

Practice Point: The proof that the victim tripped and fell onto subway tracks during an altercation did not demonstrate defendant’s intent to use the subway tracks as a dangerous instrument. The assault second conviction was vacated.

 

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