People v. Pulley

Appellate Division of the Supreme Court of New York

People v. Pulley

231 A.D.2d 534, 648 N.Y.S.2d 32, 1996 N.Y. App. Div. LEXIS 8830

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

DecidedSeptember 9, 1996

StatusPublished

Cited by2 cases

This text of 231 A.D.2d 534 (People v. Pulley) 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. Pulley, 231 A.D.2d 534, 648 N.Y.S.2d 32, 1996 N.Y. App. Div. LEXIS 8830 (N.Y. Ct. App. 1996).

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Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jones, J.), rendered June 1, 1994, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statement to the police.

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

The hearing court properly declined to suppress the defendant’s response to the arresting officer’s inquiry concerning the location of a gun. The officer’s inquiry was justifiable for safety reasons and did not violate the defendant’s constitutional right against self-incrimination (see, New York v Quarles, 467 US 649, 658-659; see also, People v Johnson, 59 NY2d 1014, 1016; People v Perez, 167 AD2d 308, 309; People v Hawthorne, 160 AD2d 727, 728).

However, in instructing the jury on the elements of assault in the first degree, the Supreme Court stated that the victim’s gunshot wound constituted a serious physical injury. This instruction impermissibly removed an element of the crime charged from the jury’s consideration (see, Penal Law § 120.10 [1]; see generally, People v Flynn, 79 NY2d 879, 881; People v Greene, 221 AD2d 559). Accordingly, under these circumstances the defendant is entitled to a new trial. Rosenblatt, J. P., Ritter, Copertino and Pizzuto, JJ., concur.

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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jones, J.), rendered June 1, 1994, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statement to the police.

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

The hearing court properly declined to suppress the defendant’s response to the arresting officer’s inquiry concerning the location of a gun. The officer’s inquiry was justifiable for safety reasons and did not violate the defendant’s constitutional right against self-incrimination (see, New York v Quarles, 467 US 649, 658-659; see also, People v Johnson, 59 NY2d 1014, 1016; People v Perez, 167 AD2d 308, 309; People v Hawthorne, 160 AD2d 727, 728).

However, in instructing the jury on the elements of assault in the first degree, the Supreme Court stated that the victim’s gunshot wound constituted a serious physical injury. This instruction impermissibly removed an element of the crime charged from the jury’s consideration (see, Penal Law § 120.10 [1]; see generally, People v Flynn, 79 NY2d 879, 881; People v Greene, 221 AD2d 559). Accordingly, under these circumstances the defendant is entitled to a new trial. Rosenblatt, J. P., Ritter, Copertino and Pizzuto, JJ., concur.

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Bluebook (online)

231 A.D.2d 534, 648 N.Y.S.2d 32, 1996 N.Y. App. Div. LEXIS 8830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pulley-nyappdiv-1996.

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