People v. Austin

131 A.D.2d 490, 516 N.Y.S.2d 248, 1987 N.Y. App. Div. LEXIS 47940

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miller, J.), rendered April 14, 1984, convicting her of assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reducing the conviction of assault in the second degree to one of assault in the third degree and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing.

The uncontroverted testimony adduced at trial indicates that the defendant struck the victim with her hand after dropping an aluminum folding chair, which she had been swinging, to the ground.

Although the use of the chair rendered it a “dangerous instrument” pursuant to Penal Law § 10.00 (13) (see, People v Carter, 53 NY2d 113; People v Rumaner, 45 AD2d 290), the People failed to prove beyond a reasonable doubt that the victim’s injury was caused by means of the chair (Penal Law § 120.05 [2]). Rather, the immediate cause of the injury was a blow to the head from the defendant’s hand. The use by the average layperson of the hand to strike a blow is insufficient proof of assault in the second degree which involves causing physical injury to another person by use of a dangerous instrument (see, People v Peet, 101 AD2d 656, affd 64 NY2d 914). Accordingly, we have reduced the conviction to one for assault in the third degree, which is fully supported by the record.

We have reviewed the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Mangano, J. P., Niehoff, Kunzeman and Kooper, JJ., concur.