People v. Bell
| Decision Date | 26 February 1990 |
| Parties | The PEOPLE, etc., Respondent, v. Randy BELL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Stephen J. Pittari, White Plains (Robert W. Stieve, of counsel), for appellant.
Carl A. Vergari, Dist. Atty., White Plains (Andrew D. Heath and Maryanne Luciano, of counsel), for respondent.
Before MOLLEN, P.J., and MANGANO, KUNZEMAN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Facelle, J.), rendered June 6, 1988, convicting him of criminal possession of a weapon in the third degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is reversed, on the facts, the indictment is dismissed, and the matter remitted to the Supreme Court, Westchester County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
On the night of May 11, 1987, the defendant Randy Bell was attacked by Kenneth Porter on the porch of the defendant's residence. During this altercation, the defendant stabbed Porter with a kitchen steak knife.
At his subsequent trial arising out of this incident, the defendant, having waived his right to a jury, was acquitted by the trial court of attempted murder in the second degree and assault in the first degree based on the court's conclusion that he stabbed Porter in self defense (see, Penal Law §§ 35.10; 35.15; see, People v. McManus, 67 N.Y.2d 541, 505 N.Y.S.2d 43, 496 N.E.2d 202). The defendant was, however, convicted of criminal possession of a weapon in the third degree.
It was established at the trial that on the night of the incident, Porter had gone to the defendant's home to find Patricia Thomas, the defendant's sister-in-law, with whom Porter had had a long term relationship. Earlier that evening, Porter, believing that Thomas was having an affair with another man, had, on two separate occasions, attacked and physically abused her. Porter was drunk when this occurred, by his own admission having consumed three quarts of beer that day.
It was also established at the trial that Porter had a history of physically abusing Thomas, and that, on at least one of these occasions of physical abuse, Porter threatened Thomas with a knife. The defendant was aware of this history of physical abuse. The defendant also may have known that Porter carried a knife.
An essential element of the crime of which the defendant was convicted is that the defendant possessed a "dangerous knife" with the "intent to use the same unlawfully against another" (Penal Law § 265.01[2]; see, Penal Law § 265.01[1].
Weighing the credible evidence of this case, it cannot be said that it...
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