People v. Karp

• Decision Date: 20 February 1990
• Citation: 551 N.Y.S.2d 503,158 A.D.2d 378
• Parties: The PEOPLE of the State of New York, Appellant, v. Jules KARP, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 503

551 N.Y.S.2d 503

158 A.D.2d 378

The PEOPLE of the State of New York, Appellant, v. Jules KARP, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Feb. 20, 1990.

H.L. Perzan, Brooklyn, for appellant.

L.S. Hinds, New York City, for defendant-respondent.

Before SULLIVAN, J.P., and ROSS, MILONAS, ELLERIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Order of the Supreme Court, New York County (Dorothy Cropper, J.), entered February 27, 1987, which dismissed the indictment charging defendant with reckless endangerment in the first degree, affirmed.

The People appeal from an oral decision, rendered February 27, 1987, which dismissed, with leave to re-present, an indictment for reckless endangerment in the first degree (Penal Law § 120.25). Supreme Court issued a one-sentence ruling which states, "I find that the questioning on the part of the District Attorney in the Grand Jury presentation was overly vigorous and that it prevented this Defendant from fully and fairly testifying and I therefore am dismissing the indictment against him with leave for the People to represent."

On this appeal, we are confronted with the anomolous situation of a victim of a crime who finds himself the object of a criminal prosecution. This case arose out of the theft of approximately $1,400 from defendant's person on a crowded street in midtown Manhattan. At about 1:30 on the weekday afternoon of March 27, 1986, upon returning from the bank to his rare coin shop at 36th Street and Broadway, defendant was pushed from behind by an unknown perpetrator, identified only as a young, black male who reached into his victim's pocket, seized the money and fled. Defendant drew a .38 caliber revolver, for which he possessed a valid carry permit, and fired two shots in the general direction of the fleeing thief. The People allege that defendant fired into a crowded street, recklessly endangering the lives of innocent bystanders. Two witnesses testified that they saw defendant fire with his arm extended, parallel to the ground. However, there was no testimony as to whether or not the barrel of the weapon was angled up in the air. It is evident that the bullets were never recovered and, in any event, the People do not assert that any bodily injury or property damage resulted from the discharge of the firearm. Defendant maintains that he simply fired into the air intending to cause the thief to stop or someone in the crowd to apprehend him. Whatever the true version of the facts, it is clear that defendant fired two shots on a busy, midtown street in such a manner as to avoid hitting any person or any object.

The briefs submitted upon this appeal address the issue of whether the Assistant District Attorney's questioning of defendant was overly vigorous so as to warrant dismissal of the indictment on the ground that defendant was thereby prevented from fully and fairly testifying before the Grand Jury. As the dissent points out, defendant was permitted to make a statement, uninterrupted save for a single valid objection as to relevancy. In our view, however, this matter requires a more detailed analysis, both of the procedure under which the indictment was obtained and the law under which defendant is sought to be prosecuted.

As the Court of Appeals has noted, the Grand Jury stands as a "buffer between the State and its citizens protecting the latter from unfounded and arbitrary accusations" (People v. Calbud, Inc., 49 N.Y.2d 389, 396, 426 N.Y.S.2d 238, 402 N.E.2d 1140). To this end, the accused is entitled to a proceeding which involves a fair presentment of the facts, permitting an intelligent assessment of the merit to the prosecution's case. Before the Grand Jury, "the prosecutor performs the dual role of advocate and public officer, charged with the duty not only to secure indictments but also to see that justice is done * * *. The prosecutor's duty of fair dealing extends not only to the submission of evidence, but also to instructions on the law, for, by statute, responsibility for instructing the Grand Jury on the law rests solely with the court and the prosecutor, and the Grand Jury may not seek legal advice from any other source" (People v. Lancaster, 69 N.Y.2d 20, 26, 511 N.Y.S.2d 559, 503 N.E.2d 990, citation omitted; see also, People v. Pelchat, 62 N.Y.2d 97, 105, 476 N.Y.S.2d 79, 464 N.E.2d 447). By this standard, the Assistant District Attorney's presentation can hardly be said to be above reproach.

At the introduction of the Grand Jury presentation three charges were posed for the Grand Jurors' consideration; attempted assault in the first degree (Penal Law §§ 110.00; 120.10), criminal possession of a weapon in the second degree (Penal Law § 265.03), and reckless endangerment in the first degree (Penal Law § 120.25). We note that, as a matter of law under the facts presented by this case, the first two charges are entirely without foundation. A person cannot attempt to commit an assault by engaging in reckless conduct (Penal Law § 120.10[3]; People v. Williams, 40 A.D.2d 1023, 338 N.Y.S.2d 980). Recklessness involves no intent but is inferred from an objective assessment of the defendant's conduct in view of the surrounding circumstances (People v. Register, 60 N.Y.2d 270, 277, 469 N.Y.S.2d 599, 457 N.E.2d 704). Since an attempt requires the intent to engage in the prohibited conduct, a crime lacking this element cannot serve as the predicate for an attempt. The District Attorney, apparently recognizing that this element was lacking, dropped the assault charge following the conclusion of the testimony.

The same analysis applies to the weapons charge (Penal Law § 265.03) which requires that a weapon, without regard to whether it is otherwise legally possessed, be carried with the intent to employ it in a criminal act. Again, an act which does not involve the element of intent cannot serve as the predicate for an offense which involves premeditation. It is clear, therefore, that these charges were brought merely for the sake of instilling prejudice against the accused and are not sustainable under any construction of the facts presented by the People.

As to the crime of reckless endangerment, with respect to which the Grand Jury returned a true bill, we find that the Assistant District Attorney's presentation to the Grand Jury, viewed in its entirety, was so misleading that it cannot be permitted to stand, whether or not it may be viewed as being supported by legally sufficient evidence (People v. Calbud, Inc., 49 N.Y.2d 389, 395, 426 N.Y.S.2d 238, 402 N.E.2d 1140, supra ). In particular, the failure to instruct the Grand Jury about the defense of justification, as it pertains to reckless endangerment, operated to the distinct prejudice of the accused. The Court of Appeals "has rejected a restrictive application of the defense and, instead, has permitted the defense to be raised against diverse charges involving the use of force, regardless of the relevant mens rea " (People v. McManus, 67 N.Y.2d 541, 547, 505 N.Y.S.2d 43, 496 N.E.2d 202, citations omitted).

In the matter under review, justification is an obviously relevant defense which casts serious doubt on various elements of the crime alleged. As stated in People v. Davis, 72 N.Y.2d 32, 35-36, 530 N.Y.S.2d 529, 526 N.E.2d 20, "Reckless endangerment in the first degree is committed when a person, under circumstances evincing a depraved indifference to human life, recklessly creates a grave risk of death to another (Penal Law § 120.25). A person acts recklessly when he is aware of, but disregards, a substantial and unjustifiable risk to the degree that his behavior does not comport with the manner in which a reasonable person would have acted under the circumstances (Penal Law § 15.05[3]". The statute requires that the reckless behavior constitute a "gross deviation" from the standard which would be observed by the reasonable person (Penal Law § 15.05[3]. The justification defense, which is an ordinary and not an affirmative defense (People v. McManus, supra, at67 N.Y.2d 546, 505 N.Y.S.2d 43, 496 N.E.2d 202), provides in material part, "A private person acting on his own account may use physical force, other than deadly physical force, upon another person when and to the extent that he reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he reasonably believes to have committed an offense and who in fact has committed such offense; and he may use deadly physical force for such purpose when he reasonably believes such to be necessary to: * * * (b) Effect the arrest of a person who has committed ... robbery ... and who is in immediate flight therefrom" (Penal Law § 35.30[4].

In the course of his Grand Jury testimony, defendant stated, "I fired two shots with the hope that somebody would stop the person or better yet that the person would stop himself and I would recover my money." He further stated, "I thought by firing up in the air, the man would halt or somebody else would stop the fleeing person." It is sufficiently clear that defendant's action was designed to halt the thief's flight and secure his apprehension, which conduct falls squarely within the purview of the statute. Defendant's use of deadly physical force is also justifiable in defense of his person if he believed that the suspect was "committing or attempting to commit ... robbery" (Penal Law § 35.15[2][b]. It is not unreasonable for defendant to have entertained the subjective belief that robbery was being committed, which is all that the statute requires (People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41). It is unreasonable to expect the layperson to appreciate the subtle legal distinction between larceny from the person (Penal Law § 155.30[5] and robbery (Penal Law § 160.05), especially in immediate response to the perpetration of a criminal act and without opportunity for reflection. The...