People v. Forde
| Decision Date | 22 June 2016 |
| Parties | The PEOPLE, etc., respondent, v. Gideon FORDE, appellant. |
| Court | New York Supreme Court — Appellate Division |
140 A.D.3d 1085
34 N.Y.S.3d 477
2016 N.Y. Slip Op. 04958
The PEOPLE, etc., respondent,
v.
Gideon FORDE, appellant.
Supreme Court, Appellate Division, Second Department, New York.
June 22, 2016.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Merri Turk Lasky of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered April 30, 2013, convicting him of manslaughter in the first degree, assault in the second degree, aggravated criminal contempt, resisting arrest, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by reducing the defendant's conviction of assault in the second degree to assault in the third degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for sentencing on the conviction of assault in the third degree.
The defendant was convicted of, inter alia, assault in the second degree under Penal Law § 120.05(9), which provides that a person is guilty of that crime when, “[b]eing eighteen years old or more and with intent to cause physical injury to a person less than seven years old, the defendant causes such injury to such person.” Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish that the infant victim sustained a physical injury (see People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ). However, we agree with the defendant that the evidence was not legally sufficient to establish that the defendant was 18 years old or more when the crime was committed, as the People adduced no evidence from which the jury could make a determination as to the defendant's age (see People v. Blodgett, 160 A.D.2d 1105, 1106, 553 N.Y.S.2d 897 ). Accordingly, we modify the judgment by reducing the defendant's conviction of assault in the second degree to assault in the third degree pursuant to Penal Law § 120.00(1), which does not include the age of the defendant as an element.
The defendant failed to preserve for appellate review his contention that certain remarks by the prosecutor in summation...
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