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1
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OPINION
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EXTRACTED KEY WORDS
DEFENDANT DANGEROUS INSTRUMENT PENAL LAW JURY CHARGE JUDGE VERDICT APPELLANT INDICTMENT ROBBERY CPL GUILTY NY2D MEMORANDUM PHYSICAL INJURY COURT CHARGE OFFENSE INCLUSORY CONCURRENT RESPONDENT APPELLATE DIVISION INDICTMENT CHARGING ASSAULT INTENT EVIDENCE TRIAL JUDGE INJURIES REQUESTING OBJECTION PARTIAL VERDICT |
1 No. 104
The People &c.,
Respondent,
v.
Danny Fuller,
Appellant.
_________________________________________________________________
2001 NY Int. 91
July 5, 2001
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Robert E. Carrigan, for appellant.
Michael S. Morgan, for respondent.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of the Appellate Division should be reversed and the count
of the indictment charging assault in the second degree dismissed.
For an attack on his girlfriend, defendant was charged in a four-count
indictment with first degree robbery (Penal Law § 160.15(3)),
second degree robbery (Penal Law § 160.10(2)(a)), and two counts of
second degree assault: assault with intent to cause physical injury by
means of a dangerous instrument (count three) (Penal Law
120.05(2)), and assault with intent to cause serious physical injury
(count four) (Penal Law § 120.05(1)).
At the close of the evidence, the Trial Judge determined that, under
count four of the indictment, the People failed to prove by legally
sufficient evidence that defendant caused serious physical injury.
Instead, the Judge submitted a lesser included charge of third degree
assault (Penal Law § 120.00(1)). Second degree assault (by means of
a dangerous instrument) and both robbery counts were also submitted.
Although the People had posited different theories of guilt as to the
assault counts, the court charged the jury without reference to the
proof: "You subtract the dangerous instrument, and you have assault in
the third degree * * * Count three, you are only to consider whether
such injuries were inflicted with a dangerous instrument; and count
four, you want to consider whether such injuries are inflicted without
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