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1
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OPINION
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EXTRACTED KEY WORDS
AFFIRM RESPONDENT MEMORANDUM ASSAULT JUDGE COURT INSTRUCTION APPELLATE DIVISION JURY EVIDENCE CHARGE-DOWN SATISFY BELT CPL UNCHALLENGED INSTRUCTION FACT-FINDING RESPONSIBILITY DANGEROUS INSTRUMENTALITY ELEMENT CRIME DEFENSE ENTITLEMENT BUTLER NY2D MERITLESS CHIEF JUDGE KAYE JUDGES TITONE BELLACOSA SMITH LEVINE CIPARICK WESLEY CONCUR |
PEOPLE, & C., RESPONDENT, v. JOHN CURTIS, APPELLANT.
89 N.Y.2d 1003, 679 N.E.2d 634, 657 N.Y.S.2d 395 (1997).
March 27, 1997
1 No. 52 (1997 NY Int. 49)
Decided March 27, 1997
_________________________________________________________________
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Stephen M. Cowherd, for Appellant.
Richard Nahas, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant was convicted after a jury trial of two counts of assault in
the second degree. The Appellate Division affirmed the judgment and a
Judge of this Court granted leave to appeal.
We now affirm. The courts below correctly concluded that no reasonable
view of the evidence supported the requested charge-down to
third-degree assault under all the circumstances of the evidence
adduced in this case, including the nature, manner and use of the belt
(see, CPL 300.50). The trial court's unchallenged instruction to the
jury concerning its fact-finding responsibility with respect to the
dangerous instrumentality element was necessary to satisfy the
requirement that the People prove all elements of the crime beyond a
reasonable doubt. The instruction did not create a defense entitlement
to a charge-down to assault in the third degree (see, People v
Butler, 84 NY2d 627, 630).
We have considered the other issues tendered to this Court and are
satisfied that they are meritless.
* * * * * * * * * * * * * * * * *
Order affirmed, in a memorandum. Chief Judge Kaye and Judges Titone,
Bellacosa, Smith, Levine, Ciparick and Wesley concur.
Decided March 27, 1997
SNIPPETS:
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