People v. Shaffer
| Decision Date | 10 October 1985 |
| Citation | 495 N.Y.S.2d 965,486 N.E.2d 823,66 N.Y.2d 663 |
| Parties | , 486 N.E.2d 823 The PEOPLE of the State of New York, Respondent, v. Patrick Alan SHAFFER, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 105 A.D.2d 863, 482 N.Y.S.2d 364, should be modified by reducing the convictions for attempted aggravated assault upon a peace officer, burglary in the first degree and criminal use of a firearm in the first degree to attempted assault in the second degree, burglary in the second degree and criminal possession of a weapon in the fourth degree, and by remitting the case to Chemung County Court for resentencing and, as so modified, affirmed.
The People failed to establish that the gun found at the scene was a "deadly weapon" (Penal Law § 10.00)--that is, both operable and loaded with live ammunition--a necessary element for attempted aggravated assault upon a peace officer (Penal Law § 110.00; and former § 120.11), burglary in the first degree (Penal Law § 140.30) and criminal use of a firearm in the first degree (Penal Law § 265.09), the crimes of which defendant was convicted. None of the four bullets found in the gun was test-fired to establish that it was live. Neither police officer who examined the gun and ammunition, testifying for the People, conducted tests to determine whether the ammunition itself was live, or explained why the ammunition was not or could not have been test-fired. That defendant may have before the burglary fired one round does not itself establish that the four remaining bullets in the gun were live, particularly where his attempt to fire again immediately failed, and where the gun failed to fire four times when directed at his intended victim. In this context, an inference that the ammunition was live, either (a) because the four remaining bullets had firing pin markings like the single spent casing and other bullets fired from the gun by the police witnesses, or (b) because defendant told his companion he would have shot the policeman if the gun had not misfired, would be wholly speculative and cannot satisfy the requirement of proof of a "deadly weapon" beyond a reasonable doubt.
Defendant cannot, however, succeed in his contention, first raised on appeal, that the conviction for attempted aggravated assault upon a peace officer must...
To continue reading
Request your trial
-
State v. Gantt
...v. Shaffer, 105 A.D.2d 863, 865, 482 N.Y.S.2d 364, 367 (App.Div.1984), aff'd as modified, 66 N.Y.2d 663, 495 N.Y.S.2d 965, 486 N.E.2d 823 (1985) (Levine, J., concurring in part and dissenting in part) (New York Penal Code requires proof of operability of weapon in order to sustain deadly-we......
-
People v. Llewelyn
...Trespass in the First Degree (PL 140.17[2] ) is that the ammunition recovered with the firearm be live (People v. Shaffer, 66 N.Y.2d 663, 495 N.Y.S.2d 965, 486 N.E.2d 823; 1 People v. Daniels, 77 A.D.2d 745, 430 N.Y.S.2d 881; People v. Thomas, 70 A.D.2d 570, 417 N.Y.S.2d 66; People v. Simmo......
-
People v. Pizarro
...A.D.3d 1415, 1416, 7 N.Y.S.3d 808, lv. denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 ; see generally People v. Shaffer, 66 N.Y.2d 663, 664, 495 N.Y.S.2d 965, 486 N.E.2d 823 ). We therefore modify the judgment accordingly.Finally, the sentence is not unduly harsh or severe.It is hereby......
-
People v. Colon
...operable and loaded with ammunition, it will not qualify as a deadly weapon ( seePenal Law § 10.00[12]; People v. Shaffer, 66 N.Y.2d 663, 664, 495 N.Y.S.2d 965, 486 N.E.2d 823 [1985];People v. Grice, 84 A.D.3d 1419, 1420, 921 N.Y.S.2d 727 [2011],lv. denied17 N.Y.3d 806, 929 N.Y.S.2d 566, 95......