People v. Porter

Appellate Division of the Supreme Court of New York

People v. Porter

69 A.D.2d 1007, 416 N.Y.S.2d 146, 1979 N.Y. App. Div. LEXIS 11785

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

DecidedApril 13, 1979

StatusPublished

Cited by7 cases

This text of 69 A.D.2d 1007 (People v. Porter) 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. Porter, 69 A.D.2d 1007, 416 N.Y.S.2d 146, 1979 N.Y. App. Div. LEXIS 11785 (N.Y. Ct. App. 1979).

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Opinions

Judgment affirmed. Memorandum: On this appeal from a conviction, after a jury trial, of assault in the first degree, defendant asserts that the trial court erred in denying his request to charge assault in the second degree as a lesser included offense to the crime charged. The verdict rejected the defenses of justification and self-defense. The trial proof showed that on February 19, 1977 the defendant fired two shots at Le Van Way from a distance of two to five feet with a .25 caliber pistol. The first shot hit the victim in the right upper quadrant of his abdomen. The second shot, which did not immediately follow the first, missed Way as he fled. Expert medical proof was offered to establish that the gunshot wound would have caused death if not treated promptly. It is impossible by means of a deadly weapon (pistol) to commit assault in the first degree, the intentional causing of "serious physical injury” (Penal Law, § 120.10, subd 1), without committing assault in the second degree, the intentional causing of "physical injury” (Penal Law, § 120.05, subd 2). Thus, the crime of assault in the second degree is a lesser included offense of assault in the first degree (CPL 1.20, subd 37). A request to charge a lesser included offense must be granted when "there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50 subds 1, 2). However, it is "only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one”, that submission of an included crime is justified (People v Mussenden, 308 NY 558, 563; see, also, People v Shuman, 37 NY2d 302, 304). While the defendant is entitled to the most favorable view of the evidence (People v Battle, 22 NY2d 323), the only reasonable view of the evidence here is that the defendant intended to cause "serious physical injury” to his victim. The type of weapon used, the manner in which it was used, the close proximity from which the shots were fired, and the location of the victim’s bullet wound exclude " 'every possible hypothesis’ ” but guilt of assault in the first degree (People v Henderson, 41 NY2d 233, 236). The trial court did not err in refusing to charge a lesser included crime of assault in the second degree. All concur, except Carda[1008]*1008mone, J. P., and Doerr, J., who dissent and vote to reverse the judgment and grant a new trial, in the following memorandum.

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Judgment affirmed. Memorandum: On this appeal from a conviction, after a jury trial, of assault in the first degree, defendant asserts that the trial court erred in denying his request to charge assault in the second degree as a lesser included offense to the crime charged. The verdict rejected the defenses of justification and self-defense. The trial proof showed that on February 19, 1977 the defendant fired two shots at Le Van Way from a distance of two to five feet with a .25 caliber pistol. The first shot hit the victim in the right upper quadrant of his abdomen. The second shot, which did not immediately follow the first, missed Way as he fled. Expert medical proof was offered to establish that the gunshot wound would have caused death if not treated promptly. It is impossible by means of a deadly weapon (pistol) to commit assault in the first degree, the intentional causing of "serious physical injury” (Penal Law, § 120.10, subd 1), without committing assault in the second degree, the intentional causing of "physical injury” (Penal Law, § 120.05, subd 2). Thus, the crime of assault in the second degree is a lesser included offense of assault in the first degree (CPL 1.20, subd 37). A request to charge a lesser included offense must be granted when "there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50 subds 1, 2). However, it is "only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one”, that submission of an included crime is justified (People v Mussenden, 308 NY 558, 563; see, also, People v Shuman, 37 NY2d 302, 304). While the defendant is entitled to the most favorable view of the evidence (People v Battle, 22 NY2d 323), the only reasonable view of the evidence here is that the defendant intended to cause "serious physical injury” to his victim. The type of weapon used, the manner in which it was used, the close proximity from which the shots were fired, and the location of the victim’s bullet wound exclude " 'every possible hypothesis’ ” but guilt of assault in the first degree (People v Henderson, 41 NY2d 233, 236). The trial court did not err in refusing to charge a lesser included crime of assault in the second degree. All concur, except Carda[1008]*1008mone, J. P., and Doerr, J., who dissent and vote to reverse the judgment and grant a new trial, in the following memorandum.

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Bluebook (online)

69 A.D.2d 1007, 416 N.Y.S.2d 146, 1979 N.Y. App. Div. LEXIS 11785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-porter-nyappdiv-1979.

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