People v. Owusu

Appellate Division of the Supreme Court of New York

People v. Owusu

248 A.D.2d 491, 669 N.Y.S.2d 366, 1998 N.Y. App. Div. LEXIS 2324

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

DecidedMarch 9, 1998

StatusPublished

Cited by2 cases

This text of 248 A.D.2d 491 (People v. Owusu) 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.

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People v. Owusu, 248 A.D.2d 491, 669 N.Y.S.2d 366, 1998 N.Y. App. Div. LEXIS 2324 (N.Y. Ct. App. 1998).

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—Appeal by the People from so much of an order of the Supreme Court, Kings County (Leventhal, J.), dated May 2, 1997, as granted the defendant’s motion to dismiss the indictment on the ground that the evidence before the Grand Jury was not legally sufficient to the extent of dismissing the first count charging burglary in the first degree, the sixth count charging assault in [492]*492the first degree, and the eighth count charging assault in the second degree, and reducing the fourth count charging burglary in the second degree to burglary in the third degree.

Ordered that the order is reversed insofar as appealed from, on the law, the defendant’s motion to dismiss the indictment is denied in its entirety, the first, fourth, sixth, and eighth counts of the indictment are reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.

The evidence presented to the Grand Jury indicated that the defendant bit the victim’s finger to the bone. As a result of the nerve damage caused by the bite, the victim has limited movement and sensitivity in his finger. The defendant was indicted for, inter alia, two burglary and two assault charges which contain as an element the use or threatened use of a dangerous instrument. Concluding that the defendant’s teeth could not be considered a dangerous instrument, the Supreme Court dismissed or reduced those four counts of the indictment. We disagree.

A dangerous instrument is defined as “any instrument, article or substance * * * which, under the circumstances in which it is used * * * is readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [13]). It is the manner in which an item is used, not its inherent nature, which brings it within the purview of the statute (see, People v Carter, 53 NY2d 113, 116; People v Nelson, 215 AD2d 782, 783). Based on this “use-oriented approach” (People v Carter, supra, at 116), we conclude that the defendant’s teeth, as used by him in this case, could be considered a dangerous instrument. Consequently, the evidence before the Grand Jury was legally sufficient to establish the “dangerous instrument” element of the four offenses at issue, and thus met the standard for Grand Jury indictment (see, People v Swamp, 84 NY2d 725, 730).

Rosenblatt, J. P., Ritter and Goldstein, JJ., concur.

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—Appeal by the People from so much of an order of the Supreme Court, Kings County (Leventhal, J.), dated May 2, 1997, as granted the defendant’s motion to dismiss the indictment on the ground that the evidence before the Grand Jury was not legally sufficient to the extent of dismissing the first count charging burglary in the first degree, the sixth count charging assault in [492]*492the first degree, and the eighth count charging assault in the second degree, and reducing the fourth count charging burglary in the second degree to burglary in the third degree.

Ordered that the order is reversed insofar as appealed from, on the law, the defendant’s motion to dismiss the indictment is denied in its entirety, the first, fourth, sixth, and eighth counts of the indictment are reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.

The evidence presented to the Grand Jury indicated that the defendant bit the victim’s finger to the bone. As a result of the nerve damage caused by the bite, the victim has limited movement and sensitivity in his finger. The defendant was indicted for, inter alia, two burglary and two assault charges which contain as an element the use or threatened use of a dangerous instrument. Concluding that the defendant’s teeth could not be considered a dangerous instrument, the Supreme Court dismissed or reduced those four counts of the indictment. We disagree.

A dangerous instrument is defined as “any instrument, article or substance * * * which, under the circumstances in which it is used * * * is readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [13]). It is the manner in which an item is used, not its inherent nature, which brings it within the purview of the statute (see, People v Carter, 53 NY2d 113, 116; People v Nelson, 215 AD2d 782, 783). Based on this “use-oriented approach” (People v Carter, supra, at 116), we conclude that the defendant’s teeth, as used by him in this case, could be considered a dangerous instrument. Consequently, the evidence before the Grand Jury was legally sufficient to establish the “dangerous instrument” element of the four offenses at issue, and thus met the standard for Grand Jury indictment (see, People v Swamp, 84 NY2d 725, 730).

Rosenblatt, J. P., Ritter and Goldstein, JJ., concur.

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248 A.D.2d 491, 669 N.Y.S.2d 366, 1998 N.Y. App. Div. LEXIS 2324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-owusu-nyappdiv-1998.

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