Attempted Assault in the Second Degree  for Assault of a Police Officer is Not a Crime

by 

Jill Paperno Author of "Representing the Accused: A Practical Guide to Criminal Defense"  

PL 120.05(3) is the statute that makes assault on a police officer a felony.  That charge is not based on an intent to cause injury to an officer.  For the reasons described in People v. Campbell, a 1988 decision excerpted below, an attempt to engage in an act with unintended consequences may not be a cognizable crime.  That is sometimes referred to as “impossibility” – that it is impossible to commit the offense.  Attempted Assault in the Second Degree under that particular subdivision is not a crime.  And yet, our clients still get charged with it.  It is up to us to remain vigilant and ensure that these charges do not form the basis for detention or incarceration.  Sometimes police don’t know this aspect of the law (which relates specifically to them, so maybe they know, and think we don’t.)  And yes, I was prompted to send this by a case that came in today and the client is being held on the charge. 

 

 

Under the Penal Law, a person “is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). An attempt exists as an integral offense having an identity separate from the crime which is being attempted. The rationale of treating an attempt as criminal conduct is “that although the defendant may have failed in his purpose, his conduct is nevertheless culpable and if carried far enough causes a sufficient risk of harm to be treated as a crime in itself (see, e.g., Hall, Criminal Attempt—A Study of the Foundations of Criminal Liability, 49 Yale LJ 789, 816)” (People v. Bracey, 41 N.Y.2d 296, 299, 392 N.Y.S.2d 412, 360 N.E.2d 1094). Essentially, an attempt to commit a crime consists of an intent to bring about the result which the particular law proscribes and, in addition, an act in furtherance of that intent (2 LaFave and Scott, Substantive Criminal Law § 6.2, at 24; 22 C.J.S., Criminal Law, § 75[1] ). To prove an attempt, the People must establish that the defendant acted for a particular criminal purpose, i.e.—with intent to “commit a specific crime (see, e.g., People v. Kane, 161 N.Y. 380, 55 N.E. 946). ‘It is not enough to show that the defendant intended to do some unspecified criminal act’ (LaFave & Scott, Criminal Law, § 59, p.  429)” (People v. Bracey, supra, at 300, 392 N.Y.S.2d 412, 360 N.E.2d 1094). Because the very essence of a criminal attempt is the defendant's intention to cause the proscribed result, it follows that there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended.

 

Thus, there can be no attempt to commit assault, second degree (Penal Law § 120.05[3] ), since one cannot have a specific 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.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200). It makes no difference that the statute calls for a different element of intent—i.e., that the injury must be caused while the defendant intends to prevent the officer from performing a lawful duty. That element of intent relates not to the result proscribed by the statute—causing the injury—but to the circumstances which make that result one for which defendant is strictly liable (see, People v. Conyers, 65 A.D.2d 437, 411 N.Y.S.2d 303, affd. on  other grounds 49 N.Y.2d 174, 424 N.Y.S.2d 402, 400 N.E.2d 342; People v. Hendrix, 56 A.D.2d 580, 391 N.Y.S.2d 186, affd. on other grounds 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; see also, Donnino, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 110.00, at 412–413).

 

Similar reasoning was employed in People v. McDavis, 97 A.D.2d 302, 303–304, 469 N.Y.S.2d 508. Like the assault second statute involved here which requires no proof of intention to cause injury, the manslaughter first statute (Penal Law § 125.20[1] ) in McDavis does not require intent to cause death. The manslaughter first statute does, however—again, like the assault second statute here—require proof of intent on a different element: in subdivision (1), intent to produce serious physical injury. Because the statute requires no proof of intent to cause death, the proscribed result, it was held that there can be no attempt to commit that crime (see, People v. McDavis, supra, at 303–304, 469 N.Y.S.2d 508).

 

People v. Campbell, 72 N.Y.2d 602, 605–06, 532 N.E.2d 86, 87–88 (1988)

 

There is a distinction made between whether elements are just aggravating factors or not in determining whether a charge is impossible.  See People v. Saunders, 85 NY2d 341.  For some discussion see People v. Prescott, 95 NY2d 655 which addressed whether attempts to commit DWI and AUO1 were cognizable charges.

 

Generally, where a penal statute imposes strict liability for creating an unintended result, an attempt to commit that crime is not a legally cognizable offense (see, People v. Campbell, 72 N.Y.2d, at 605–606, 535 N.Y.S.2d 580, 532 N.E.2d 86, supra). One cannot attempt to create an unintended result. By contrast, where a penal statute imposes strict liability for committing certain conduct, an attempt is legally cognizable, since one can attempt to engage in conduct (see, People v. Saunders, 85 N.Y.2d, at 341, 624 N.Y.S.2d 568, 648 N.E.2d 1331, supra). Likewise, an attempt is legally cognizable where a statute penalizes certain core conduct, but includes as an aggravating factor that the defendant caused an unintended result (see, People v. Fullan, 92 N.Y.2d, at 693–694, 685 N.Y.S.2d 901, 708 N.E.2d 974, supra; People v. Miller, 87 N.Y.2d, at 217–218, 638 N.Y.S.2d 577, 661 N.E.2d 1358, supra).

4 Driving while intoxicated appears to fit within the confines of Saunders, since it is aimed principally at conduct: operating a motor vehicle while “intoxicated.” However, as the Saunders Court acknowledged, other factors, including statutory and policy considerations, can help inform the “attempt” analysis (People v. Saunders, 85 N.Y.2d, at 342–343, 624 N.Y.S.2d 568, 648 N.E.2d 1331, supra). Here, we conclude that the Legislature did not contemplate criminal liability for attempted drunk driving. We reach that conclusion based on the comprehensive nature of article 31 of the Vehicle and Traffic Law and its discrete penalty scheme.

 

People v. Prescott, 95 N.Y.2d 655, 659, 745 N.E.2d 1000, 1002 (2001)

 

To assess whether an attempt of a crime is a cognizable charge, you may have to actually do a Westlaw search in relation to that charge since the analysis is not always intuitive or easily understood.

An interesting article about the pervasive problem of cops lying under oath and what can be done about it.

Read the article here. 

This is the best decision you'll read this week.

Says United States District Court Judge Carlton W. Reeves, our new hero: "Clarence Jamison was a Black man driving a Mercedes convertible. As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs. Nothing was found. Jamison isn’t a drug courier. He’s a welder."

Read on here. It's long, but every word is worth your time. 

And just in case you forgot this stunning speech, at the sentencing of 3 white defendants for the execution of an elderly black man, by the same judge, you can reread it here. H/T James Grable

Prosecutors and Judges Who Pretend To Credit Police Perjury are Complicit in the Police Misconduct

In 1982, in his book “The Best Defense,” Alan Dershowitz listed what he called the Rules of the Justice Game. Among these were the following:

Rule III: It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution. 
Rule IV: Almost all police lie about whether they violated the Constitution in order to convict guilty defendants. 
Rule V: All prosecutors, judges, and defense attorneys are aware of Rule IV. 
Rule VI: Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants. 
Rule VII: All judges are aware of Rule VI. 
Rule VIII: Most trial judges pretend to believe police officers who they know are lying.   

That prosecutors encourage and judges credit police perjury to allow unlawfully obtained evidence to be admitted is not merely a theory. The New York Times has reported that the prevalence of police perjury to justify stops and seizures is so great that the police themselves for it – testilying. Indeed, in a three part series, the New York Times found that there is a “ culture of dishonesty” and that officers who lie to justify illegal police conduct are more likely to be promoted than punished. (Parts one, two, and three of the reporting on police perjury).

This encouragement and acceptance of police lies regarding illegal police behavior explains why police believe that they can get away with writing false reports about their actions. The videos of the past month have demonstrated that the police version of events, such as the murder of George Floyd, are often lies to justify their illegal behavior.  Only because of the videos, we know that the police lied when they claimed that Floyd resisted
arrest or that, in Buffalo, Martin Gugino, tripped. Otherwise the police lies would have been accepted.

We won’t have justice until prosecutors and judges stop pretending to believe lying police officers. If after seeing proof of police lies, prosecutors and judges still pretend to credit them, they are complicit in the misconduct.

New York’s bail reform statute, while only in existence for just over a month, has generated numerous news stories, opinion pieces, and critical articles. Already, there have been calls for the law’s repeal (In the words of one state senator’s call for repeal: “This is only a partial list of offenses that allow criminals to leave prison without bail. These ‘reforms’ are now giving a free pass to many individuals who commit serious crimes that place our communities at risk” [https://www.nysenate.gov/petitions/james-l-seward/repeal-bail- reform]). These criticisms often equate having been charged with a crime with committing it. They stoke fear that a person charged with a crime will commit other crimes while released, reinforcing this bias by reporting arrests of people during their release on other charges. Seldom do these criticisms mention that an accused person is presumed innocent. 

The tenor of popular discourse on this issue evidences a dark reality that looms in the depths of our criminal justice system. That is, most jurors probably don’t presume the innocence of the accused. Yet, that presumption lies at the foundation of our criminal justice system, requiring trial courts to instruct juries about the presumption without minimizing its importance (see CPL § 300.10[2]; People v Hall, 155 AD2d 344, 346-347 [1st Dept 1989]). 

The problem is that potential jurors often hide their true feelings on the presumption of innocence. They’ll tell the court they can presume innocence, while wondering what crime the defendant committed. And who can blame a juror for hiding this opinion? In a courtroom full of strangers, who would want to be seen as unfair, biased, or unjust? 

To unmask a potential jurors true feelings on the presumption of innocence, we should ask them to share their opinion on bail reform. In the answer, a potential juror might equate criminal charges with commission of a crime, just like many of the critics. And because these criticisms are veiled in terms of justice and/or fairness, a potential juror may be more willing to share an opinion. An answer could even spark a helpful debate amongst the panel. There is no downside in asking.

We should expect this line of questioning to be met with resistance from the trial court, which has broad discretion in limiting questioning during jury selection (see People v Boulware, 29 NY2d 135[1971]; People v Corbett, 68 AD2d 7762 [4th Dept 1979]). We should respond that these questions address the ability of a potential juror to be fair and impartial, an area of inquiry in which a trial court is more apt to commit error (see CPL § 270.20[1][b]; People v Arnold, 96 NY2d 358 [2001]; People v Johnson, 94 NY2d 600 [2000]; People v Lewis, 71 AD3d 1582 [4th Dept 2010]; People v Habte, 35 AD3d 1199 [4th  Dept 2006]). 

Thus, for example, if a potential juror favors pretrial incarceration, we should be able to determine if the juror favors such incarceration because he assumes someone has committed a crime when charged with a crime. It should also be determined if a juror favors pretrial incarceration to prevent a defendant from committing more crimes. If that’s the case, it’s unlikely the juror would follow a Sandoval or Molineux instruction. 

We should move to strike these jurors for cause. Before rejecting such a challenge, the trial court must have some basis in finding that the juror will render a verdict based on evidence and free of these biases. Unfortunately, these biases are reinforced in the daily news cycle. 

In situations like the above, a trial court will ask if the potential juror can still be “fair and impartial” despite prior statements suggesting otherwise. Most jurors respond that they can be fair and impartial. 

But it is not enough for a trial court simply to hear a potential juror agree that he could be fair and impartial; when a doubt remains about a potential juror’s ability to be fair, the juror should be discharged for cause (People v Bludson, 97 NY2d 644 [2001]). This means that even after a potential juror assured that he can be fair and impartial, we should ask if the juror has changed his opinion about bail reform.

We could also direct their attention to the trial court’s earlier instruction that the charges in the indictment and the indictment itself are not evidence of guilt. 

If a juror maintains his criticism of bail reform after this questioning, the juror likely will maintain his or her assumptions underlying the criticism. In this case, no instruction will rid the juror of this assumption, and a doubt remains of the juror’s ability to be fair and impartial. When a doubt like this exists, a juror must be discharged for cause. A trial court that fails to do so risks reversal.

By Paul Meabon