People v. Marshall
| Decision Date | 26 November 1984 |
| Citation | 482 N.Y.S.2d 45,105 A.D.2d 849 |
| Parties | The PEOPLE, etc., Respondent, v. Hazel E. MARSHALL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Charles M. Newell, Quogue, for appellant.
Patrick Henry, Dist. Atty., Riverhead (Bonnie H. Stein, of counsel; Sandra Cohen, on brief), for respondent.
Before WEINSTEIN, J.P., and BROWN, RUBIN and EIBER, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Suffolk County, rendered September 8, 1983, convicting her of assault in the second degree and reckless endangerment in the second degree (five counts), after a nonjury trial, and imposing sentence.
Judgment affirmed, and matter remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (subd. 5).
On this appeal, defendant contends that there is no evidence to support her conviction of assault in the second degree, pursuant to subdivision 4 of section 120.05 of the Penal Law, which requires (all other elements of the assault being satisfied) the use of a deadly weapon or dangerous instrument. She asserts that a mere cloth ankle or wrist restraint cannot be construed as a "dangerous instrument".
We conclude, however, that such restraints may be considered dangerous instruments. Subdivision 13 of section 10.00 of the Penal Law defines a "instrument" as "any instrument, article or substance * * * which, under the circumstances in which it is used * * * is readily capable of causing death or other serious physical injury". As the Court of Appeals has explained, (People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30; see, also, People v. Brown, 100 A.D.2d 879, 474 N.Y.S.2d 139). Applying this "use-oriented approach" (People v. Carter, supra, 53 N.Y.2d p. 116, 440 N.Y.S.2d 607, 423 N.E.2d 30), the Appellate Division, First Department held in People v. Cwikla, 60 A.D.2d 40, 400 N.Y.S.2d 35, revd. on other grounds 46 N.Y.2d 434, 414 N.Y.S.2d 102, 386 N.E.2d 1070, that a handkerchief used to gag a 74-year-old man who was bound around his wrists and feet was a "dangerous instrument" within the meaning of the Penal Law. The First Department rejected the defendant's contention that a handkerchief was not a "dangerous instrument" because it was not readily capable of causing harm, since...
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