New York Law Review

Tag: Aggravated Assault

  • People v. Plunkett, 19 N.Y.3d 400 (2012): Body Parts as Dangerous Instruments and Guilty Plea Forfeiture

    People v. Plunkett, 19 N.Y.3d 400 (2012)

    A defendant’s guilty plea does not forfeit the right to appeal a conviction where the claim is that the defendant was not charged with an extant crime, particularly when the accusatory instrument alleges commission of a crime by use of a part of the defendant’s person as a dangerous instrument, as such a claim challenges the legal viability of the theory of prosecution itself.

    Summary

    Plunkett, HIV positive with a psychiatric history, bit a police officer during an arrest and was charged with aggravated assault using his teeth and saliva as dangerous instruments. The trial court, acknowledging that teeth could not be considered dangerous instruments, posited that Plunkett’s saliva could be, and allowed the charge to stand. Plunkett pled guilty, but reserved the right to appeal this ruling. The New York Court of Appeals held that Plunkett’s plea did not forfeit his right to appeal the legal question of whether his saliva could constitute a dangerous instrument, and further held that under People v. Owusu, body parts cannot be considered dangerous instruments.

    Facts

    Plunkett, known to be HIV positive and with a psychiatric history, was arrested after behaving erratically and possessing marijuana in his doctor’s office. During the arrest, Plunkett bit a police officer’s finger. The indictment charged Plunkett with aggravated assault on a police officer, alleging his teeth were the dangerous instrument. The People’s bill of particulars specified Plunkett’s teeth as the dangerous instrument, but the trial court later suggested that Plunkett’s saliva could also be considered a dangerous instrument.

    Procedural History

    The Herkimer County Grand Jury indicted Plunkett for aggravated assault, among other charges. Plunkett’s attorney moved to dismiss the aggravated assault count based on the Owusu decision, which held that body parts cannot be dangerous instruments. The County Court denied the motion, reasoning that Plunkett’s saliva, not his teeth, constituted the dangerous instrument. Plunkett pled guilty to several counts, reserving the right to appeal the dangerous instrument ruling. The Appellate Division affirmed the conviction, holding that the guilty plea forfeited Plunkett’s right to appeal. The Court of Appeals granted permission to appeal.

    Issue(s)

    1. Whether a guilty plea forfeits a defendant’s right to appeal a legal determination that a body part (saliva) can constitute a “dangerous instrument” for purposes of aggravated assault, where the defendant reserved the right to appeal that specific determination as part of the plea agreement?

    2. Whether saliva can be considered a “dangerous instrument” under Penal Law § 10.00(13)?

    Holding

    1. No, because the claim is that the defendant was never charged with an extant crime and the claim challenges the legal viability of the theory of prosecution itself.

    2. No, because body parts cannot be “dangerous instruments” under Penal Law § 10.00(13).

    Court’s Reasoning

    The Court of Appeals distinguished this case from cases where a guilty plea forfeits appellate claims. The Court emphasized that the challenge was not to the factual sufficiency of the evidence, but to the legal viability of the charge itself. A plea establishes facts, but cannot “mint an offense for which the law does not already provide.” The Court relied on People v. Lee, stating that forfeiture should not apply where an appellate claim is not inconsistent with what is properly established by the plea. The court stated, “[i]f the question reserved for appeal in this case were whether there was evidence to make out the crime of aggravated assault, the reservation would, under Thomas, be ineffective; the undisturbed plea would operate to forfeit the appellate claim.”

    Regarding the “dangerous instrument” issue, the Court relied on People v. Owusu, stating that “a part of one’s body is not encompassed by the terms ‘article’ or ‘substance’ as used in the statute.” The Court reasoned that allowing body parts to be dangerous instruments would lead to a “sliding scale of criminal liability” based on the physical attributes of the assailant and victim. Because Plunkett’s saliva “came with him,” it could not be used to enhance criminal liability. The Court stressed this did not diminish the state’s power to punish the harm inflicted, but only limited its power to heighten liability based solely on corporeal attributes. The court explicitly stated “Owusu’s teeth came with him and thus could not themselves qualify as a predicate to heighten his criminal liability beyond that justified by his victim’s injury (id. at 405). Because defendant’s saliva too “came with him”— indeed, with his teeth—its utility for penal enhancement may not be treated differently.”

  • People v. Gonzalez, 61 N.Y.2d 586 (1984): Determining Predicate Felonies for Enhanced Sentencing Based on Out-of-State Convictions

    61 N.Y.2d 586 (1984)

    For a prior out-of-state conviction to serve as a predicate felony for enhanced sentencing in New York, the elements of the foreign crime must be equivalent to those of a New York felony, as determined by comparing the statutes, and the accusatory instrument can only be used to clarify, not expand, the statutory charge.

    Summary

    Gonzalez was sentenced as a second felony offender in New York based on prior Florida convictions for aggravated assault. The New York Court of Appeals reversed, holding that the Florida convictions could not serve as predicate felonies because it was impossible to determine if the acts Gonzalez committed in Florida would constitute a felony in New York. The court emphasized that the sentencing court must compare the elements of the foreign statute with those of an analogous New York felony, relying on the accusatory instrument only to clarify the statutory charge, not to broaden it. Since the jury in Florida could have convicted Gonzalez of acts that would constitute either a felony or a misdemeanor in New York, and the record did not clarify which acts formed the basis of the conviction, enhanced sentencing was improper.

    Facts

    Gonzalez pleaded guilty in New York to criminal sale of a controlled substance. Prior to sentencing, the prosecution filed a predicate felony statement based on Gonzalez’s prior Florida convictions. In Florida, Gonzalez had been charged with attempted robbery, aggravated assault, aggravated battery, and shooting into an occupied building. Following a jury trial, he was convicted of two counts of aggravated assault as lesser included offenses of attempted robbery, and two counts of aggravated assault as charged in the original information. The New York Supreme Court determined that the Florida convictions for aggravated assault corresponded to attempted robbery in the third degree in New York and sentenced Gonzalez as a second felony offender.

    Procedural History

    The Supreme Court, Westchester County, sentenced Gonzalez as a second felony offender based on the Florida convictions. The Appellate Division affirmed the Supreme Court’s decision. Gonzalez appealed to the New York Court of Appeals, arguing that the Florida convictions did not satisfy New York’s requirements for predicate felonies.

    Issue(s)

    Whether the Florida convictions for aggravated assault can serve as predicate felonies for enhanced sentencing in New York when the Florida statute encompasses conduct that could constitute either a felony or a misdemeanor in New York, and the record does not clarify the specific conduct underlying the convictions.

    Holding

    No, because it cannot be determined from the Florida statutes or the accusatory instrument whether the jury found that Gonzalez committed acts that would constitute a felony in New York. The accusatory instrument can only be used to clarify, not expand, the statutory charge, and in this case, it did not provide sufficient clarity.

    Court’s Reasoning

    The Court of Appeals reasoned that a prior out-of-state conviction is a predicate felony in New York only if the foreign crime’s elements are equivalent to those of a New York felony. Citing People v. Olah, the court stated that the determination must be based on the statute under which the indictment was drawn. The court acknowledged an exception to the Olah rule, allowing examination of the accusatory instrument when the foreign statute encompasses multiple acts that could constitute either felonies or misdemeanors in New York. However, the accusatory instrument can only clarify the statutory charge, not expand it.

    In this case, the Florida statute for aggravated assault included both assault with a deadly weapon and assault with intent to commit a felony. The court found that neither subdivision necessarily corresponded to a New York felony. Furthermore, because Gonzalez was convicted of lesser included offenses, and the record did not clarify which specific acts the jury relied upon, it was impossible to determine whether the Florida convictions were for conduct that would constitute a felony in New York. The Court noted, “[T]he allegations of the accusatory instrument may be referred to when necessary to clarify the statutory charge, to limit or narrow the basis for the conviction, but they may not be used to enlarge or expand the crime charged.” Because the prosecution failed to establish that the Florida convictions met New York’s requirements for predicate felonies, enhanced sentencing was improper.