People v. McDavis

• Decision Date: 16 December 1983
• Parties: PEOPLE of the State of New York, Respondent, v. Darryl McDAVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 508

469 N.Y.S.2d 508

97 A.D.2d 302

PEOPLE of the State of New York, Respondent, v. Darryl McDAVIS, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 16, 1983.

Rose H. Sconiers, Buffalo (Joseph Mistrett, Buffalo, of counsel), for appellant.

Richard J. Arcara, Buffalo (Louis Haremski, Buffalo, of counsel), for respondent.

Before HANCOCK, J.P., and CALLAHAN, DENMAN, BOOMER and MOULE, JJ.

BOOMER, Justice.

During the course of an attempted rape, the defendant stabbed the victim six times in the chest and breast and twice in the abdomen. After a jury trial, the defendant was convicted of attempt to commit murder in the second degree, two counts of assault in the first degree, attempt to commit rape in the first degree, and criminal possession of a weapon.

On appeal, defendant urges three grounds for reversal of the conviction of attempted murder. He contends (1) that the evidence is insufficient to prove an intent to kill; (2) that the trial court erred by refusing to charge attempted manslaughter in the first degree as a lesser included offense of attempted murder; and (3) that the jury's verdict of guilty of attempted murder in the second degree and intentional assault in the first degree is repugnant.

(1) Defendant argues that the intent to cause death was not proven beyond a reasonable doubt because the evidence was equally consistent with both an intent to cause serious physical injury and an intent to cause death. We find, however, that the multiple stab wounds, two of which penetrated the abdominal cavity and cut the stomach and liver, provided sufficient evidence to permit the jury to infer that the defendant intended not only to injure the victim, but also to cause her death.

(2) Contrary to defendant's contention, the trial justice correctly refused to charge attempt to commit manslaughter in the first degree (Penal Law, § 125.20 [subd. 1], § 110.00) ^* as a lesser included offense of attempt to commit murder in the second degree. Although some courts have recognized the crime of attempted manslaughter in the first degree (People v. Lanzot, 67 A.D.2d 864, 413 N.Y.S.2d 399; People v. Falu, 37 A.D.2d 1025, 325 N.Y.S.2d 798), we hold that there is no such crime. A person is guilty of an attempt to commit a crime only when he intends to commit that crime (Penal Law, § 110.00). There must be a specific intent to commit a specific crime (People v. Bracey, 41 N.Y.2d 296, 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094). Hence, there can be no attempt to commit a crime that does not involve a specific intent, such as manslaughter in the second degree, a crime predicated upon a reckless act (People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127; People v. Falu, 37 A.D.2d 1025, 325 N.Y.S.2d 798, supra). Likewise, there can be no attempt to commit a crime where one of the elements is a specific intent but another, an unintended result. Thus, there are no such crimes as attempt to commit felony murder (People v. Hendrix, 56 A.D.2d 580, 391 N.Y.S.2d 186; affd. 44 N.Y.2d 658, 405 N.Y.S.2d 31, 376 N.E.2d 192; People v. Hassin, 48 A.D.2d 705, 368 N.Y.S.2d 253), attempt to commit felony assault (see People v. Conyers, 65 A.D.2d 437, 411 N.Y.S.2d 303, affd. 49 N.Y.2d 174, 424 N.Y.S.2d 402, 400 N.E.2d 342, adhered to 52 N.Y.2d 454, 438 N.Y.S.2d 741, 420 N.E.2d 933), and by parity of reasoning, attempt to commit manslaughter in the first degree (People v. Williams, 40 A.D.2d 1023, 338 N.Y.S.2d 980). In each of those crimes, one of the elements is an unintended result--physical injury in the case of felony assault, and death in the cases of felony murder and manslaughter in the first degree. Since one cannot intend an unintended result, there can be no attempt to commit those crimes.

The case of People v. Falu (supra) is not authority to the contrary. Although the appellate court allowed the conviction of attempted manslaughter in the first degree to stand, there was no contention by the defendant that he was convicted of a non-existent crime. He had asked for the charge of attempted manslaughter in the first degree as a lesser included offense of the crime of attempted murder in the second degree, and his argument on appeal was that the court erred in refusing to charge down further to attempted manslaughter in the second degree. Hence, the court was not called upon to decide whether there is such a crime as attempted manslaughter in the first degree.

(3) We reject defendant's argument that the verdict of guilty of attempted murder and assault in the first degree is repugnant. A verdict is repugnant when an acquittal of one crime negates an essential element of...