People v. Kane

Appellate Division of the Supreme Court of New York

People v. Kane

87 A.D.2d 578, 447 N.Y.S.2d 737, 1982 N.Y. App. Div. LEXIS 15844

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

DecidedMarch 1, 1982

StatusPublished

Cited by3 cases

This text of 87 A.D.2d 578 (People v. Kane) 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. Kane, 87 A.D.2d 578, 447 N.Y.S.2d 737, 1982 N.Y. App. Div. LEXIS 15844 (N.Y. Ct. App. 1982).

Pincite

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (Bonomo, J.), rendered February 10, 1981, convicting him of assault in the second degree, after a nonjury trial, and imposing sentence. Judgment modified, on the law, by reducing defendant’s conviction to one of assault in the third degree and vacating the sentence imposed. As so modified, judgment affirmed and case remitted to the Supreme Court, Kings County, for the imposition of sentence and for further proceedings pursuant to CPL 460.50 (subd 5). Defendant became involved in a fistfight between his codefendant and the complainant. Defendant did not know that his codefendant possessed a knife and intended to use it. The codefendant stabbed the complainant, causing a serious injury. Defendant never saw the knife. On these facts, defendant’s conviction of assault in the second degree (Penal Law, § 120.05) cannot stand. While it was proven beyond a reasonable doubt that defendant intended to cause physical injury to the complainant, it was not proven beyond a reasonable doubt that he caused such injury by means of a deadly weapon or a dangerous instrument. He did not have the same intent or purpose of his codefendant and, therefore, cannot be responsible for the codefendant’s actions (see People v La Belle, 18 NY2d 405). Since defendant did not cause injury with the knife or know that the codefendant possessed the knife, he cannot be found guilty of assault in the second degree. However, since it was proven beyond a reasonable doubt that defendant intended to cause physical injury to the complainant and that he did cause such injury during the course of the fistfight, his guilt of assault in the third degree was established. The matter must be remitted for the resentencing of defendant on the lesser offense. Titone, J. P., Mangano, Gibbons and Thompson, JJ., concur.

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Appeal by defendant from a judgment of the Supreme Court, Kings County (Bonomo, J.), rendered February 10, 1981, convicting him of assault in the second degree, after a nonjury trial, and imposing sentence. Judgment modified, on the law, by reducing defendant’s conviction to one of assault in the third degree and vacating the sentence imposed. As so modified, judgment affirmed and case remitted to the Supreme Court, Kings County, for the imposition of sentence and for further proceedings pursuant to CPL 460.50 (subd 5). Defendant became involved in a fistfight between his codefendant and the complainant. Defendant did not know that his codefendant possessed a knife and intended to use it. The codefendant stabbed the complainant, causing a serious injury. Defendant never saw the knife. On these facts, defendant’s conviction of assault in the second degree (Penal Law, § 120.05) cannot stand. While it was proven beyond a reasonable doubt that defendant intended to cause physical injury to the complainant, it was not proven beyond a reasonable doubt that he caused such injury by means of a deadly weapon or a dangerous instrument. He did not have the same intent or purpose of his codefendant and, therefore, cannot be responsible for the codefendant’s actions (see People v La Belle, 18 NY2d 405). Since defendant did not cause injury with the knife or know that the codefendant possessed the knife, he cannot be found guilty of assault in the second degree. However, since it was proven beyond a reasonable doubt that defendant intended to cause physical injury to the complainant and that he did cause such injury during the course of the fistfight, his guilt of assault in the third degree was established. The matter must be remitted for the resentencing of defendant on the lesser offense. Titone, J. P., Mangano, Gibbons and Thompson, JJ., concur.

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Bluebook (online)

87 A.D.2d 578, 447 N.Y.S.2d 737, 1982 N.Y. App. Div. LEXIS 15844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kane-nyappdiv-1982.

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