People v. Butler

Appellate Division of the Supreme Court of New York

People v. Butler

63 A.D.2d 943, 406 N.Y.S.2d 320, 1978 N.Y. App. Div. LEXIS 11976

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 27, 1978

StatusPublished

Cited by1 cases

This text of 63 A.D.2d 943 (People v. Butler) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Butler, 63 A.D.2d 943, 406 N.Y.S.2d 320, 1978 N.Y. App. Div. LEXIS 11976 (N.Y. Ct. App. 1978).

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Opinion

Judgment, Supreme Court, New York County, rendered July 29, 1975, convicting defendant Francis M. Butler of attempted rape in the first degree, assault in the first degree and unlawful [944]*944imprisonment in the second degree (two counts) and sentencing him thereupon to various terms of imprisonment, unanimously modified, on the law, to the extent of vacating the conviction of assault in the first degree and dismissing said charge and, except, as thus modified, affirmed. Judgment, Supreme Court, New York County, rendered July 15, 1975, convicting defendant Jorge Taylor of attempted rape in the first degree, assault in the first degree and unlawful imprisonment in the second degree (two counts) and sentencing him thereupon to various terms of imprisonment, unanimously modified, on the law, to the extent of vacating the conviction of assault in the first degree and dismissing said charge, and, except, as thus modified, affirmed. Judgment, Supreme Court, New York County, rendered September 8, 1975, convicting defendant Joe Nelson of attempted rape in the first degree, assault in the first degree, unlawful imprisonment in the second degree (two counts), attempted murder and robbery in the third degree and sentencing him thereupon to various terms of imprisonment, unanimously modified, on the law, to the extent of vacating the conviction of assault in the first degree and dismissing said charge, and, except, as thus modified, affirmed. On the appeal of a codefendant (People v Jackson, 58 AD2d 762), we previously held that a glass window through which the complaining witness jumped to escape from the attempted rape could not, on the facts presented, constitute the instrument which, under the circumstances in which it was being used, was readily capable of causing death or serious physical injury. (Penal Law, § 10.00, subd 13.) The People have failed to establish an essential element of assault in the first degree, namely, that the serious physical injury was caused by means of a dangerous instrument. (Penal Law, § 120.10, subd 1.) We have examined the other points raised on appeal and find them to be without merit. Concur—Lupiano, J. P., Fein, Lane, Markewich and Sullivan, JJ.

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Judgment, Supreme Court, New York County, rendered July 29, 1975, convicting defendant Francis M. Butler of attempted rape in the first degree, assault in the first degree and unlawful [944]*944imprisonment in the second degree (two counts) and sentencing him thereupon to various terms of imprisonment, unanimously modified, on the law, to the extent of vacating the conviction of assault in the first degree and dismissing said charge and, except, as thus modified, affirmed. Judgment, Supreme Court, New York County, rendered July 15, 1975, convicting defendant Jorge Taylor of attempted rape in the first degree, assault in the first degree and unlawful imprisonment in the second degree (two counts) and sentencing him thereupon to various terms of imprisonment, unanimously modified, on the law, to the extent of vacating the conviction of assault in the first degree and dismissing said charge, and, except, as thus modified, affirmed. Judgment, Supreme Court, New York County, rendered September 8, 1975, convicting defendant Joe Nelson of attempted rape in the first degree, assault in the first degree, unlawful imprisonment in the second degree (two counts), attempted murder and robbery in the third degree and sentencing him thereupon to various terms of imprisonment, unanimously modified, on the law, to the extent of vacating the conviction of assault in the first degree and dismissing said charge, and, except, as thus modified, affirmed. On the appeal of a codefendant (People v Jackson, 58 AD2d 762), we previously held that a glass window through which the complaining witness jumped to escape from the attempted rape could not, on the facts presented, constitute the instrument which, under the circumstances in which it was being used, was readily capable of causing death or serious physical injury. (Penal Law, § 10.00, subd 13.) The People have failed to establish an essential element of assault in the first degree, namely, that the serious physical injury was caused by means of a dangerous instrument. (Penal Law, § 120.10, subd 1.) We have examined the other points raised on appeal and find them to be without merit. Concur—Lupiano, J. P., Fein, Lane, Markewich and Sullivan, JJ.

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Bluebook (online)

63 A.D.2d 943, 406 N.Y.S.2d 320, 1978 N.Y. App. Div. LEXIS 11976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-butler-nyappdiv-1978.

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