People v. Richards
| Decision Date | 27 February 1979 |
| Citation | 413 N.Y.S.2d 698,67 A.D.2d 893 |
| Court | New York Supreme Court — Appellate Division |
| Parties | The PEOPLE of the State of New York, Respondent, v. Isaac RICHARDS, Defendant-Appellant. |
A. H. Saperstein, New York City, for respondent.
J. B. Jordan, New York City, for defendant-appellant.
Before BIRNS, J. P., and SANDLER, SULLIVAN and SILVERMAN, JJ.
Judgment, Supreme Court, Bronx County, rendered January 11, 1978, convicting defendant of assault in the second degree, and sentencing him thereupon to a term of three and one-half to seven years, unanimously reversed, on the law, and the matter remanded for a new trial.
Defendant was charged with two counts of assault and a related charge of possession of a dangerous weapon, as a misdemeanor. The charges arose out of a Riker's Island incident in which defendant, an inmate, allegedly struck a Correction Officer attempting to restrain him from leaving his cell without authorization. According to the People, defendant struck the officer in the face with a food tray, and then punched him in the chest and shoulder. Count one, of which defendant was ultimately acquitted, charged him with assault in the second degree predicated upon an intent to prevent a peace officer from performing a lawful duty. (Penal Law, § 120.05(3).) Count two, of which defendant was convicted, charged him with assault by means of a dangerous instrument, i. e., the tray. (Penal Law, § 120.05(2).)
Before summations defendant requested that the Court submit assault in the third degree as a lesser included offense under both assault counts, based upon the victim's testimony that defendant had repeatedly punched him in the chest and shoulder. The Court refused. This was error as to count two since there existed a reasonable view of the evidence to support a finding that defendant had committed only the lesser offenses, especially since the jury might reject the theory that the tray was a dangerous instrument. (See, Penal Law, § 10.00(13).)
After summations were concluded and the jury had been sent home for the day, the Court advised counsel that it had changed its decision and would submit assault in the third degree as a lesser included offense under count two. Inherent in the guarantee of a fair trial is the right to present closing arguments. (Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593.) In recognition of this precept, Criminal Procedure Law § 300.10(3) requires that the trial court's determination of the charges to be...
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Caban v. Mitchell, 93 Civ. 6328 (JES).
...one of the defendants inflicted cuts by a sharp instrument but only kicked and punched the victim); People v. Richards, 67 A.D.2d 893, 894, 413 N.Y.S.2d 698, 699 (1st Dept.1979) (trial court improperly refused to submit a third degree assault charge, since the jury might reject a theory tha......
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State v. Villa
...Garza, 55 S.W.3d at 77–78; People v. Millsap, 189 Ill.2d 155, 244 Ill.Dec. 54, 724 N.E.2d 942, 947–48 (2000); People v. Richards, 67 A.D.2d 893, 413 N.Y.S.2d 698, 699 (1979); Thurmond, 677 N.W.2d 655, ¶¶ 24–25; but see Cheely v. State, 850 P.2d 653, 663 (Alaska Ct.App.1993) (no “detrimental......
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Champelle v. Coombe
...the effective assistance of counsel. People v. Teasley, 73 A.D.2d 548, 423 N.Y.S.2d 4 (1st Dep't 1979); People v. Richards, 67 A.D.2d 893, 413 N.Y.S.2d 698 (1st Dep't 1979). Petitioner contends that Justice Warner's deletion of third degree assault from the jury charge after defense counsel......
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State v. Villa
...Garza, 55 S.W.3d at 77–78 ; People v. Millsap, 189 Ill.2d 155, 244 Ill.Dec. 54, 724 N.E.2d 942, 947–48 (2000) ; People v. Richards, 67 A.D.2d 893, 413 N.Y.S.2d 698, 699 (1979) ; Thurmond, 677 N.W.2d 655, ¶¶ 24–25 ; but see Cheely v. State, 850 P.2d 653, 663 (Alaska Ct.App.1993) (no “detrime......