People v. Zimmerman
| Decision Date | 24 October 1974 |
| Citation | 360 N.Y.S.2d 127,46 A.D.2d 725 |
| Parties | PEOPLE of the State of New York, Respondent, v. John ZIMMERMAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Donald L. Austin, Utica, for appellant.
Richard D. Enders, Timothy O'Shea, Utica, for respondent.
Before MOULE, J.P., and CARDAMONE, SIMONS, MAHONEY and GOLDMAN, JJ.
Defendant was indicted for kidnapping, second degree, and attempted murder. It is alleged that he abducted an eight-year-old girl, transported her to the banks of the State Barge Canal and there twice threw her into the water of the canal in an effort to cause her death by drowning. Upon the trial the court charged down to unlawful imprisonment, second degree, and no farther than attempted manslaughter, second degree, on the second count. The jury brought in verdicts for these two lesser charges. Defendant was sentenced to a conditional discharge on the unlawful imprisonment count and an indeterminate sentence with a maximum of seven years on the attempted manslaughter count. In this court defendant correctly contends that the judgment for attempted manslaughter, second degree, is invalid. There can be no doubt on the point. An attempt is an intentional act (Penal Law section 110.00). Manslaughter, second degree, as it applies to this case, is a reckless act (Penal Law section 125.15, subd. 1). One may not intentionally attempt to cause the death of another human being by a reckless act (People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922; see also People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200; People v. Williams, 40 A.D.2d 1023, 338 N.Y.S.2d 980; People v. Falu, 37 A.D.2d 1025, 325 N.Y.S.2d 798). The court erred in charging attempted manslaughter, second degree, and in failing to charge attempted assault, second degree. The judgment on the second count of the indictment should be modified to attempted assault, second degree (Penal Law sections 110.00, 120.05, subd. 1; CPL 470.15, subd. 2(b)). The defendant also contends it was error to deny his motion for a mistrial after a police witness testified to oral admissions made by defendant which were not previously identified in the District Attorney's notice served pursuant to section 710.30 of the Criminal Procedure Law. The court struck the testimony on motion and gave appropriate instructions to jury. Considering that defendant's written confession was properly received in evidence, offering the testimony concerning the...
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People v. Campbell
...intent to cause an unintended injury (see, People v. Bracey, supra, at 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094; People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127; People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922; State v. Almeda, 189 Conn. 303, 455 A.2d 1326; cf., People v. Foster, 19 N.Y......
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Harris v. State
...and 'reckless' are inconsistent terms." Stennett v. State, 564 So.2d 95, 96 (Ala.Crim.App.1990), citing People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127, 128 (1974); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922, 923 (1975); ......
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Stennet v. State
...have considered this question and have also found that there is no such offense as attempted manslaughter. See People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127, 128 (1974) ("An attempt is an intentional act. Manslaughter ... is a reckless act. One may not intentionally attempt to cause ......
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People v. Foy
...to attempt to commit a crime which does not include culpable intent as an element, such as reckless manslaughter (People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127; People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922), or where the proscribed result is unintended, such as assault in the sec......