People v. Ludwig

• Decision Date: 13 November 1989
• Citation: 547 N.Y.S.2d 414,155 A.D.2d 558
• Parties: The PEOPLE, etc., Respondent, v. Richard LUDWIG, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 414

547 N.Y.S.2d 414

155 A.D.2d 558

The PEOPLE, etc., Respondent, v. Richard LUDWIG, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 13, 1989.

Deirdre M. Butterfield, Northport, for appellant.

Patrick Henry, Dist. Atty., Riverhead (Steven A. Hovani, of counsel; Claire Moloney, on the brief), for respondent.

Before MANGANO, J.P., and THOMPSON, SPATT and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Copertino, J.), rendered June 1, 1987, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of assault in the second degree, based on his having caused physical injury to the complainant by the use of a dangerous instrument. The witnesses for the prosecution testified that the defendant plunged a stick into the complainant's left eye after being asked to leave the complainant's premises. As a result, the complainant lost his left eye. The defendant testified that he threw the stick at the complainant during an altercation in which the complainant accosted him, and that he had no intention of causing any injury.

Both sides presented psychiatric testimony relating to whether the defendant possessed or lacked the requisite culpable intent to cause physical injury to the complainant. Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15[5].

We reject the defendant's argument that the stick in question was not a dangerous instrument within the meaning of Penal Law § 10.00(13). That section defines a dangerous instrument as any instrument, article or substance "which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." In considering whether an object is a dangerous instrument, the question is whether the object, no matter how innocuous it may appear when used for its legitimate purpose, "becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury" (People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30) (emphasis in original). Applying this "use-oriented" approach, objects that may be deemed dangerous instruments under certain circumstances include a chair (People v. Austin, 131 A.D.2d 490, 516 N.Y.S.2d 248); a pool cue (People v. Naylor, 120 A.D.2d 940, 502 N.Y.S.2d 856); a knife handle without a blade (People v. Williams, 118 A.D.2d 609, 499 N.Y.S.2d 452); and cloth used to restrain another person's wrists (People v. Marshall, 105 A.D.2d 849, 482 N.Y.S.2d 45). There was ample evidence at bar to support a finding that the defendant used the stick in a...