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.