People v. Usher, 29 N.Y.2d 234 (1971)
The felony assault statute, unlike the felony murder statute, does not limit the predicate felonies to only those that are inherently dangerous; any felony can serve as the basis for a felony assault conviction if physical injury results during its commission.
Summary
Usher, while driving a stolen car and being chased by police, crashed into a taxi, injuring the occupants. He was convicted of criminal possession of stolen property, felony assault, and other charges. Usher appealed, arguing that the felony underlying the assault (possession of stolen property) was not a dangerous felony and therefore could not support a felony assault conviction. The New York Court of Appeals affirmed the conviction, holding that the felony assault statute does not limit predicate felonies to only dangerous felonies, distinguishing it from the felony murder statute. The court also rejected Usher’s due process argument, stating that the legislature can hold a felon criminally accountable for injuries proximately caused during the commission of any felony.
Facts
Defendant Usher was in possession of a stolen automobile.
While being pursued by the police, Usher crashed the stolen vehicle into a taxicab.
Two occupants of the taxicab sustained physical injuries as a result of the collision.
Procedural History
Usher was convicted at trial of criminal possession of stolen property, two counts of felony assault, unauthorized use of a motor vehicle, and possession of a dangerous instrument.
Usher appealed the conviction, arguing that the felony assault conviction was invalid because the underlying felony (criminal possession of stolen property) was not a dangerous felony.
The Appellate Division affirmed the conviction.
Usher appealed to the New York Court of Appeals.
Issue(s)
Whether the felony of criminal possession of stolen property can serve as a predicate for a felony assault conviction under Penal Law § 120.05(6).
Whether the felony assault statute, as applied to a nonviolent felony such as possession of stolen property, is unconstitutional.
Holding
Yes, because the language of the felony assault statute is clear and unambiguous, and does not specify that only violent felonies can serve as a predicate. The legislature intended to distinguish between the felony murder and felony assault statutes.
No, because due process does not preclude a legislative determination that a felon who proximately causes injury to another during the commission of a felony can be held criminally accountable, regardless of the nature of the underlying felony.
Court’s Reasoning
The Court reasoned that the legislative intent could be inferred from the specific language of the statute. The felony assault statute states that a person is guilty of assault in the second degree when, during the commission of a felony, they cause physical injury to another person. The statute does not limit the predicate felonies to violent crimes, unlike the felony murder statute, which specifically enumerates the felonies that can serve as a predicate.
The Court noted that the felony murder statute was intentionally revised to narrow its scope, while the felony assault statute was not. The court stated that “the change from the former law was deliberate, its effect ameliorative, and brought the law of felony murder into line with that in the vast majority of other jurisdictions by specifically limiting its application to felonies involving violence or substantial risk of serious injury and death.”
The Court rejected Usher’s argument that the felony assault statute was unconstitutional as applied to nonviolent felonies. The court stated, “we do not think that due process precludes a legislative policy determination that the felon who proximately causes injury to another, irrespective of the nature of the underlying felonious act, may be held criminally accountable.”
The Court acknowledged the criticism of constructive malice in felony murder, but maintained its permissibility as a legislative policy choice.
Finally, the Court noted that Usher’s argument regarding error in submitting the criminal possession of stolen property and unauthorized use of a vehicle charges to the jury was not preserved for review because no objection was made at trial.