People v. Kent

Appellate Division of the Supreme Court of New York

People v. Kent

10 A.D.2d 662, 196 N.Y.S.2d 154, 1960 N.Y. App. Div. LEXIS 11868

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

DecidedFebruary 4, 1960

StatusPublished

Cited by3 cases

This text of 10 A.D.2d 662 (People v. Kent) 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. Kent, 10 A.D.2d 662, 196 N.Y.S.2d 154, 1960 N.Y. App. Div. LEXIS 11868 (N.Y. Ct. App. 1960).

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Opinion

Judgment of conviction unanimously reversed on the law and facts and a new trial granted. Appeal from order dismissed as academic. Memorandum: The trial court erred in failing to charge assault, third degree, and we, in the exercise of proper discretion, think it should have been done despite the failure of defendant’s assigned counsel to so request. In view of the evidence of defendant’s intoxication, the jury, under appropriate instructions, might have found that the element of intent referred to in section 242 of the Penal Law was not present but that there was guilt of third degree assault, nevertheless. It is not clear from the record whether the additional sentence under section 1944 of the Penal Law was imposed by the trial court in the exercise of discretion, or by a determination that such sentence was mandatory under the law. If the question arises upon retrial, sentence under the section should be imposed or not imposed as a matter of discretion. (Appeal from a judgment of Oswego County Court convicting defendant of assault, second degree, on two counts. The order denied defendant’s motion for an order directing that defendant be returned for resentence and that the additional sentence under section 1944 of the Penal Law be deleted.) Present — Bastow, J. P., Goldman, Halpern, McClusky and Henry, JJ.

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Judgment of conviction unanimously reversed on the law and facts and a new trial granted. Appeal from order dismissed as academic. Memorandum: The trial court erred in failing to charge assault, third degree, and we, in the exercise of proper discretion, think it should have been done despite the failure of defendant’s assigned counsel to so request. In view of the evidence of defendant’s intoxication, the jury, under appropriate instructions, might have found that the element of intent referred to in section 242 of the Penal Law was not present but that there was guilt of third degree assault, nevertheless. It is not clear from the record whether the additional sentence under section 1944 of the Penal Law was imposed by the trial court in the exercise of discretion, or by a determination that such sentence was mandatory under the law. If the question arises upon retrial, sentence under the section should be imposed or not imposed as a matter of discretion. (Appeal from a judgment of Oswego County Court convicting defendant of assault, second degree, on two counts. The order denied defendant’s motion for an order directing that defendant be returned for resentence and that the additional sentence under section 1944 of the Penal Law be deleted.) Present — Bastow, J. P., Goldman, Halpern, McClusky and Henry, JJ.

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Bluebook (online)

10 A.D.2d 662, 196 N.Y.S.2d 154, 1960 N.Y. App. Div. LEXIS 11868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kent-nyappdiv-1960.

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