People v. Torrez
| Citation | 86 Misc.2d 369,382 N.Y.S.2d 233 |
| Parties | The PEOPLE of the State of New York v. Ivan TORREZ and Roy Sandoval, Defendants. |
| Decision Date | 16 March 1976 |
| Court | United States State Supreme Court (New York) |
Mario Merola, Dist. Atty., New York City (Harvey Slovis, Asst. Dist. Atty., of counsel), for the People.
Robert Cantor, Brooklyn, for defendants.
In this omnibus motion, the defendant Ray Sandoval seeks to obtain nine different forms of relief. This decision concerns itself solely with the application to dismiss the indictment, the other eight requested reliefs are dealt with separately.
The indictment, filed October 14, 1975, consists of five counts. It charges both defendants with the following crimes allegedly committed on October 8, 1975: (1) Robbery in the First Degree in forcibly stealing certain property from one John Dones, in the course of which they were armed with and used and threatened the immediate use of a dangerous instrument, 'a German Shepherd dog,' in violation of subdivision 3 of section 160.15 of the Penal Law; (2) Grand Larceny in the Third Degree, stealing the same property from the same victim in violation of subdivision 5 of section 155.30 of the Penal Law; (3) Criminal Possession of a Weapon in the Fourth Degree, 'a German Shepherd dog,' with intent to use that weapon unlawfully against another; (4) Assault in the Second Degree, specifically that in the course of and in furtherance of the commission and attempted commission of a felony and of the immediate flight therefrom, they caused injury to the same victim named in the first and second counts, in violation of subdivision 6 of section 120.05 of the Penal Law; (5) Robbery in the Second Degree in that they forcibly stole certain property from the same victim. In all five counts, the indictment charges that the defendants acted in concert with each other and other persons.
The major issue in this motion is raised by the first item in the motion, whether counts 1 and 3 of the indictment are valid insofar as they seek to include the term 'a German Shepherd dog' in the terms 'dangerous instrument' and 'deadly weapon.' I hold that while the first count is valid, that a German Shepherd dog can be a 'dangerous instrument', the third court must be dismissed since a German Shepherd dog cannot be a 'deadly weapon'. My holding turns on the difference in the definitions of the two terms contained in the Penal Law.
Subdivision 13 of section 10.00 of the Penal Law reads as follows:
The term 'instrument' is not defined in the Penal Law. Neither is 'article' nor 'substance.' Webster's New International Dictionary, Second Edition, Unabridged, page 1288, has several definitions of 'instrument'. The first is particularly relevant to our consideration of the legislative intent in using it in subdivision 13 of section 10.00. It reads:
'That by means of which any work is performed or result is effected; a medium; means.
The bold are but the Instruments of the wise.
Dryden.'
Clearly, a large and potentially ferocious dog such as a German Shepherd trained to menace another human being, to threaten him with imminent attack upon the command of his master, another human being, and used by its master to compel another human being to yield up his valuables, becomes an instrument by means of which the divestation of ownership is effected, a 'medium, means' for effectuating a robbery; he is an instrument which the victim of the threat of serious physical injury views as highly dangerous to him and under threat of which he yields up his property to the dog's master.
This interpretation is clearly consistent with the legislative intent manifested in the balance of the statutory definition of the term 'dangerous instrument'. The...
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Frederique v. Cnty. of Nassau
...degree. See Garraway , 187 A.D.2d at 762, 589 N.Y.S.2d 942 (holding that a pit bull dog was a dangerous instrument); People v. Torrez , 86 Misc.2d 369, 371, 382 N.Y.S.2d 233 (Sup.Ct.Bronx Cty.1976) (holding that a German Shepard dog was a dangerous instrument). Therefore, the relevant inqui......
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State v. Bowers
...the trial court's ruling that under the facts, the defendant's dog was a deadly weapon. Finally, the defendant in People v. Torrez, 86 Misc.2d 369, 382 N.Y.S.2d 233 (1976), was charged with first-degree robbery, the equivalent of our aggravated robbery. The facts of the case are not stated ......
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State v. Hoeldt
...a "dangerous weapon" where it is used as an "instrumentality" likely to cause great bodily harm). But see People v. Torrez, 86 Misc.2d 369, 372-73, 382 N.Y.S.2d 233 (Sup.Ct.1976) (holding that a dog could qualify as a "dangerous instrument," but not a "deadly weapon" within the meaning of N......
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People v. Kay
...assaults another with an offensive weapon or instrument * * * is guilty of a high misdemeanor." Finally, in People v. Torrez, 86 Misc.2d 369, 382 N.Y.S.2d 233 (1976), defendant sought a dismissal of an indictment charging him with use of a dangerous instrument, a German shepherd dog. The Ne......