People v. Graham

• Decision Date: 09 April 1973
• Citation: 41 A.D.2d 226,342 N.Y.S.2d 361
• Parties: The PEOPLE, etc., Respondent, v. Robert GRAHAM, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 361

342 N.Y.S.2d 361

41 A.D.2d 226

The PEOPLE, etc., Respondent, v. Robert GRAHAM, Appellant.

Supreme Court, Appellate Division, Second Department.

April 9, 1973.

Sparrow, Sparrow, Singer & Kirschner, Kew Gardens (Stephen J. Singer, Kew Gardens, of counsel), for appellant.

Thomas J. Mackell, Dist. Atty. (Thomas A. Duffy, Kew Gardens, of counsel), for respondent.

Before RABIN, P.J., and HOPKINS, MUNDER, MARTUSCELLO and CHRIST, JJ.

CHRIST, Justice.

The defendant was indicted for the crime of reckless endangerment in the first degree and convicted as charged after a jury trial. The indictment alleged that on or about September 11, 1971 the defendant, 'under circumstances evincing a depraved indifference to human life, did recklessly engage in conduct which created a grave risk of death to another person, to wit: did fire a shot at Winifred Kelly.' The proof upon the trial, virtually undisputed, was as follows: During the course of an argument between the defendant and the complainant in the latter's luncheonette, the defendant pulled a Luger pistol from his waistband, pointed it at the complainant's chest and pulled the trigger. The defendant was not more than two or three feet from the complainant, but the gun did not fire. Ballistics testimony substantially confirmed the defendant's contention that there was no bullet in the chamber and that the safety device was in play. After further argument, the defendant released the safety device, chambered a live cartridge and fired again. This time he was standing two feet from the complainant and, according to his own estimate, held the pistol eight inches from her head and fired to the side of her head. The bullet entered a window behind the complainant. The defendant denied having had any intent to injure the complainant and claimed that he was simply trying to scare her and show her that he meant business.

The defendant's primary claim on this appeal is that, while the proof might have supported a variety of criminal charges, it did not support a conviction for the crime of reckless endangerment. He argues that the crime of reckless endangerment is designed to encompass only those situations where the act is not directed at any specific individual in particular. We disagree.

It is true that the practice commentaries on sections 120.20 and 120.25 of the Penal Law (reckless endangerment in the first and second degrees) in McKinney's Consolidated Laws of New York (Book 39, Penal Law, §§ 1.00 to 219, pp. 218, 219) cite, as examples, cases where the actor's conduct is not directed at any specific person. Thus, there is posited the situation of one who mischievously throws a rock through the window of a dwelling without knowing or caring whether anyone is in the premises near the window at the time; and of one who recklessly shoots off a gun into a crowd without any specific intent to kill or injure. If no injury results, the crime is reckless endangerment in both cases. However, there is nothing in the statutory definition of this crime, in either the first or second degree, which limits its application to acts directed at no one in particular. All that is necessary is the creation of a certain degree of risk 'to another person'.

Further support for the proposition that the act here in question falls within the ambit of the reckless...