People v. Carter

• Decision Date: 09 June 1981
• Citation: 53 N.Y.2d 113,423 N.E.2d 30,440 N.Y.S.2d 607
• Parties: , 423 N.E.2d 30 The PEOPLE of the State of New York, Respondent, v. Louis CARTER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 607

440 N.Y.S.2d 607

53 N.Y.2d 113, 423 N.E.2d 30

The PEOPLE of the State of New York, Respondent, v. Louis CARTER, Appellant.

Court of Appeals of New York.

June 9, 1981.

David F. Kunz, Albany, for appellant

Sol Greenberg, Dist. Atty. (F. Patrick Jeffers and L. Michael Mackey, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

The issue on this appeal is whether a rubber boot used to stomp upon the head of a helpless victim is a dangerous instrument within the meaning of the Penal Law.

On the afternoon of February 26, 1978, defendant was driving through the City of Albany with his girlfriend, Frances Coleman, when the two began to quarrel. Defendant pulled his car to the curb in the vicinity of 10 Lark Drive. Coleman exited the car and began to walk away. As she was leaving, defendant viciously assaulted her. He began by striking her several times with his fists. She fell to the ground. While she lay helpless on the pavement, defendant kicked and "stomped" her several times in the head and face. Coleman lapsed into a coma. At the time of trial several months later, the victim remained in a comatose state and the People's medical expert testified that in his opinion her condition would never improve.

Defendant was charged in a two-count indictment with attempted murder and assault in the first degree. The assault charge was predicated upon subdivision 1 of section 120.10 of the Penal Law, which defines assault in the first degree as intentional causation of serious physical injury "by means of a deadly weapon or a dangerous instrument." After a jury trial, defendant was acquitted on the attempted murder charge and convicted of first degree assault.

On appeal, defendant contended, inter alia, that the pair or rubber boots which he was wearing at the time of the assault could not be considered a "dangerous instrument" within the meaning of the Penal Law. The Appellate Division, 73 A.D.2d 986, 423 N.Y.S.2d 559, unanimously rejected this argument and affirmed defendant's conviction. There should be an affirmance.

The term "dangerous instrument" is defined in subdivision 13 of section 10 of the Penal Law 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." The statute makes no attempt to give an absolute definition of the term or to provide a list of items which can be considered dangerous instruments. Instead the statute states plainly that any "instrument, article or substance", no matter how innocuous it may appear to be when used for its legitimate purpose, becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury. (See Hechtman, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 39, Penal Law, § 10.00, p. 21.) The object itself need not be inherently dangerous. It is the temporary use rather than the inherent vice of the object which brings it within the purview of the statute.

The courts of this State have consistently adopted this use-oriented approach. In People v. Cwikla, 60 A.D.2d 40, 400 N.Y.S.2d 35, revd on other grounds 46 N.Y.2d 434, 414 N.Y.S.2d 102, 386 N.E.2d 1070, for example, we noted our agreement with the Appellate Division that a common handkerchief with which a victim was gagged and which led to his asphyxiation was a "dangerous instrument" within the meaning of the Penal Law. In a like manner, leather boots used to kick a victim in the face (...