People v. Foy

• Citation: 587 N.Y.S.2d 111,155 Misc.2d 81
• Decision Date: 18 June 1992
• Docket Number: AP-10
• Parties: The PEOPLE of the State of New York v. Edward J. FOY, Jr., Defendant
• Court: New York City Court

Page 111

587 N.Y.S.2d 111

155 Misc.2d 81

The PEOPLE of the State of New York v. Edward J. FOY, Jr., Defendant.

Criminal Court of the City of New York,

Bronx County, Part AP-10.

June 18, 1992.

Robert M. Baum, Legal Aid Soc., Bronx, for defendant (Jason Wohlford, of counsel).

Robert T. Johnson, Dist. Atty., Bronx County, Bronx, for plaintiff (Cassandra Bethel, of counsel).

EDGAR G. WALKER, Justice.

The defendant, Edward J. Foy, Jr. is charged with criminal mischief in the fourth degree [P.L. § 145.00(1) ] aggravated harassment in the second degree [P.L. § 240.30(1) ] and menacing [P.L. § 120.15] under docket number 91X090196. He is also charged with assault in the third degree [P.L. § 120.00(1) ], criminal mischief in the fourth degree [P.L. § 145.00(1) ], criminal contempt in the second degree [P.L. § 215.50(3) ] and harassment [P.L. § 240.25(1) ] under docket number 91X041201.

The People have moved on docket number 91X090196 to reduce the charge of criminal mischief in the fourth degree to attempted criminal mischief in the fourth degree and to reduce the charge of aggravated harassment in the second degree to attempted aggravated harassment in the second degree. The People have moved on docket number 91X041201 to reduce the charge of assault in the third degree to attempted assault in the third degree, to reduce the charge of criminal contempt in the second degree to attempted criminal contempt in the second degree and to reduce the charge of criminal mischief in the fourth degree to attempted criminal mischief in the fourth degree. Defendant opposes these motions and, in the alternative, has demanded a jury trial should the court grant the People's motion to reduce.

I. Motion to Reduce

The defendant opposes the People's motion to reduce the charges of criminal contempt in the second degree and aggravated harassment in the second degree to the attempts to commit said crimes, claiming that such crimes are "hypothetical," in that they are impossible of commission. ¹

The defendant concedes that the decision as to whether to prosecute an individual and on what charges is a matter left to the discretion of the District Attorney. People v. Zimmer, 51 N.Y.2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705. The defendant further concedes that the court may permit the reduction of a charge to the lesser included attempt even where the factual allegations contained in the information would support the completed crime, as long as commission of the reduced charge is not legally impossible under any statement of facts. People v. Williams, 120 Misc.2d 68, 465 N.Y.S.2d 648.

This court agrees, as do the People, that the defendant may not be tried for an "attempt" which is legally impossible of commission, but disagrees that the reduced charges herein constitute such "hypothetical" crimes.

Section 110.00 of the penal law provides that "[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." Thus, to constitute an attempt it must first be established that the defendant acted with a specific intent. People v. Campbell, 72 N.Y.2d 602, 535 N.Y.S.2d 580, 532 N.E.2d 86; People v. Bracey, 41 N.Y.2d 296, 392 N.Y.S.2d 412, 360 N.E.2d 1094.

It follows that it would be legally impossible to attempt to commit a crime which does not include culpable intent as an element, such as reckless manslaughter (People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127; People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922), or where the proscribed result is unintended, such as assault in the second degree as defined by Section 120.05(3) of the penal law (People v. Campbell, supra.)

The only other category of crimes which the courts have found to be impossible to attempt are those which include the attempt in the definition of completed crime, such as resisting arrest (People v. Howlett, 76 Misc.2d 801, 351 N.Y.S.2d 289), or which are nothing more than an attempt to begin with, such as jostling (People v. Lynn, 115 Misc.2d 76, 454 N.Y.S.2d 585).

Both of the crimes which the People here seek to reduce to attempts are intentional crimes and neither crime can be committed by the mere attempt to do the proscribed act or bring about the proscribed result. ²

Given the almost limitless range of conduct which may be the subject of a lawful court order, examples of conduct amounting to attempted criminal contempt in the second degree, as defined in subdivision 3 of section 215.50 of the penal law are not difficult to conceive of, especially in light of the clear language of section 110.10 of the penal law, that where a person engages in conduct that otherwise constitutes an attempt, "it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be."

Thus, a person under court order not to drive a car under any circumstances who gets behind the wheel of a car with the intention of driving it and turns the key in the ignition, only then discovering that the car won't start because the battery is dead or the gas tank is empty, is clearly guilty of attempted criminal contempt in the second degree. Such person did all that was necessary to complete the crime had the attendant circumstances been as he believed them to be. His mistake in that respect is no bar to his conviction for the attempt.

Likewise, with respect to aggravated harassment in the second degree as defined in subdivision 1 of section 240.30 of the penal law, a person who dials the telephone with the requisite intent only to reach a wrong number or get a busy signal, may be convicted of...