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ASSAULT SECOND HAS A PERPETRATOR-VICTIM-AGE-DIFFERENCE” ELEMENT; THE PEOPLE FAILED TO PROVE DEFENDANT’S AGE WITH ADMISSIBLE EVIDENCE; CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s attempted assault conviction, which has an “victim-perpetrator age-difference” element, determined the age of the defendant was not proven with admissible evidence:​

… [T]he second-degree assault conviction based on the victim and defendant’s respective ages was against the weight of the evidence because the People did not meet their burden to adduce adequate admissible evidence to establish defendant’s age (see Penal Law § 120.05[12] …). The only evidence offered by the People was the testimony of the arresting officer’s partner, who stated that while “assisting with the arrest,” he learned defendant’s date of birth without explaining whether he acquired the information from questioning defendant, from a fellow officer or from some document or report (see People v Justice, 99 AD3d 1213, 1214 [4th Dept 2012], lv denied 20 NY3d 1012 [2013] [insufficient evidence of the defendant’s age where a police officer generally testified that he learned the defendant’s birthday “during the course of his investigation,” and the People failed to establish that the testimony was admissible under some exception to the hearsay rule]). People v McVay, 2026 NY Slip Op 03887, First Dept 6-18-26

Practice Point: Here the defendant’s age was an element of the crime and the People failed to prove it with admissible evidence. The conviction was therefore reversed.​

 

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DOWSING THE VICTIM WITH ACCELERANT AND IGNITING IT DO NOT SATISFY THE STATUTORY... THE DEFENSE REQUEST FOR A MISSING WITNESS JURY INSTRUCTION WAS PROPERLY DENIED;...