New York Law Review

Tag: Felony Assault

  • People v. Spivey, 81 N.Y.2d 356 (1993): Establishing Intent in Felony Assault and Verdict Sheet Restrictions

    People v. Spivey, 81 N.Y.2d 356 (1993)

    The intent necessary for a felony assault conviction is inferred from the intent to commit the underlying felony, and the defendant need not be physically present at the scene of the assault, as long as the assault occurs during the immediate flight from the predicate felony; furthermore, verdict sheets listing statutory elements are reversible error unless agreed upon by both parties.

    Summary

    Defendant Spivey was convicted of second-degree assault (felony assault) after his accomplices assaulted a police officer during their flight from a robbery. The Appellate Division reversed, dismissing the assault count and ordering a new trial, also directing the trial court to sanction the prosecution for a Rosario violation (failure to produce a police officer’s memo book). The Court of Appeals reinstated the assault count, holding that the intent for felony assault can be inferred from the underlying felony, even if the defendant wasn’t physically present during the assault. The Court also affirmed the new trial order due to an improper verdict sheet but removed the mandate to fashion a Rosario sanction because the defendant received the relief requested at trial.

    Facts

    Transit Police Officer Schumacher witnessed Spivey and three others robbing a man. Schumacher apprehended Spivey but pursued the other three into a subway. The three suspects assaulted Schumacher. After a chase, two were caught. Spivey was tried jointly with the other defendants. Officer Schumacher’s memo book, containing entries about the case, was lost before trial. At a reconstruction hearing, Schumacher testified about the incident. The defense moved for a mistrial or to preclude Schumacher’s testimony, but the court denied the mistrial and stated there was no reconstruction testimony before the jury.

    Procedural History

    The trial court convicted Spivey of second-degree assault and other crimes. The Appellate Division reversed the assault conviction, dismissed that count, and remanded for a new trial on the remaining counts. The Appellate Division also directed the trial court to fashion a sanction for the Rosario violation. The People appealed the dismissal of the assault count and the Rosario sanction direction. Spivey appealed the new trial order.

    Issue(s)

    1. Whether the intent necessary for a felony assault conviction can be inferred from the intent to commit the underlying felony, similar to felony murder doctrine.
    2. Whether a defendant must be physically present at the scene of the assault for a felony assault conviction.
    3. Whether the defendant was entitled to an additional sanction for the Rosario violation.
    4. Whether the verdict sheet containing additional explanatory language was proper.

    Holding

    1. Yes, because the intent necessary to sustain a conviction for felony assault is inferred from the intent to commit the underlying felony, and whether the assault occurred during the immediate flight from a predicate felony is a question of fact for the jury.
    2. No, because it is sufficient that the assault is made on a nonparticipant of a predicate felony “in furtherance of the commission or attempted commission of [the] felony, * * * or of immediate flight therefrom” (Penal Law § 120.05 [6]).
    3. No, because the trial court granted the alternative relief requested by the defense (preclusion of reconstruction testimony), no additional sanction is required.
    4. No, because giving the jury a verdict sheet that lists some of the statutory elements of the counts is reversible error unless the parties agree.

    Court’s Reasoning

    The Court of Appeals analogized felony assault (Penal Law § 120.05 [6]) to felony murder (Penal Law § 125.25), noting their similar language. It cited People v. Gladman, 41 NY2d 123, stating that in felony murder, intent is inferred from the intent to commit the underlying felony. The Court applied the same logic to felony assault, referencing People v. Snow, 74 NY2d 671, which affirmed the Appellate Division’s reasoning that the intent for felony murder or assault is inferred from the underlying felony. The Court held that the assault occurring during immediate flight is a factual question for the jury.

    The Court further held that physical presence isn’t required, emphasizing the statute’s language about assaults made “in furtherance” of the felony or flight. Regarding the Rosario violation, the Court noted that the defense requested, and received, preclusion of reconstruction testimony, thus satisfying the need for a sanction.

    Finally, the Court reaffirmed the rule against verdict sheets listing statutory elements without agreement from both parties, citing People v. Kelly, 76 NY2d 1013, and other cases. This necessitates a new trial despite the reinstatement of the assault charge.

  • People v. Usher, 29 N.Y.2d 234 (1971): Scope of Felony Assault Predicate Felonies

    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.