People v. Falu
| Decision Date | 18 November 1971 |
| Citation | 37 A.D.2d 1025,325 N.Y.S.2d 798 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Joseph FALU, Appellant. |
| Court | New York Supreme Court — Appellate Division |
James N. White, Montgomery County Dist. Atty., Amsterdam, for respondent.
Jack Korman, New York City, for appellant.
Before STALEY, J.P., and GREENBLOTT, COOKE, SWEENEY and SIMONS, JJ.
Appeal from a judgment of the County Court of Montgomery County, rendered December 22, 1969 upon a verdict convicting defendant of the crimes of attempted manslaughter in the first degree and possession of a weapon or dangerous instrument (Penal Law, § 265.05).
There was proof: that on the afternoon of July 13, 1969 defendant drove to a hospital to see if his wife, who had had a baby, was still there; that, upon being informed that his wife had been discharged, defendant went to her family's home; that, after speaking to his wife and mother-in-law outside of the house, defendant left and went to his apartment where he picked up a brown bag; and that he then returned to his in-laws' home where he took a gun from a brown bag and fired six shots at various members of the family, three of which hit Louis Grevely. Defendant having been tried on an indictment charging the attempted murder of Grevely, two counts of assault in the first degree allegedly committed upon Grevely and possession of a dangerous instrument as a felony, the court charged as to said crimes as well as manslaughter in the first degree, second degree assault and third degree assault.
Contending that there is no proof that defendant attempted to kill any specific person, it is urged that fundamental error was committed in not charging that part of section 125.15 of the Penal Law reading: Despite the failure to request such a charge (cf. People v. Richardson, 36 A.D.2d 25, 29--30, 319 N.Y.S.2d 351, 355--357; People v. Lawhorn, 32 A.D.2d 975, 301 N.Y.S.2d 734), defendant's argument overlooks the basic fact that one cannot be guilty of an attempt to commit manslaughter in the second degree in respect to said subdivision (cf. People v. Foster, 19 N.Y.2d 150, 152--153, 278 N.Y.S.2d 603, 604--606, 225 N.E.2d 200, 201--202; People v. Brown, 21 A.D.2d 738 739, 249 N.Y.S.2d 922, 923). A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime (Penal Law, § 110.00). ...
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...supplied; People v. Moran, 123 N.Y. 254, 25 N.E. 412; People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200; People v. Falu, 37 A.D.2d 1025, 325 N.Y.S.2d 798; People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d The statutory definitions of the crimes of resisting arrest (205.30) and ob......
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People v. Armlin
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People v. Martinez
...decided prior to People v. McDavis (supra ). Moreover, the Olsen case cites as support for its holding our decision in People v. Falu, 37 A.D.2d 1025, 325 N.Y.S.2d 798, in which the validity of the crime of attempted manslaughter in the first degree was apparently not at issue (see, People ......
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People v. McDavis
...recognized the crime of attempted manslaughter in the first degree (People v. Lanzot, 67 A.D.2d 864, 413 N.Y.S.2d 399; People v. Falu, 37 A.D.2d 1025, 325 N.Y.S.2d 798), we hold that there is no such crime. A person is guilty of an attempt to commit a crime only when he intends to commit th......