Summary
holding that a plate glass window can be a dangerous instrument because "`[i]t is the temporary use rather than the inherent vice of the object which brings it within the purview of the statute'" (quoting People v. Carter, 440 N.Y.S.2d 607, 609 (1981))
Summary of this case from State v. MontanoOpinion
September 18, 1990
Appeal from the Supreme Court, New York County (Joan Carey, J.).
This case arose out of a vicious robbery as the victim proceeded along 40th Street, between 5th and 6th Avenues, on her way to work at 7 o'clock in the morning. The victim testified that defendant shoved her from behind, grabbed the strap of her purse, spun her around several times, and then shoved her head through a plate-glass window. Two bystanders observed at least part of the incident. Another bystander saw defendant spinning her around.
The defendant was convicted of robbery in the first degree on the ground that defendant used or threatened the use of a dangerous instrument. (Penal Law § 160.15.) The People's theory at trial was that the plate-glass window constituted a dangerous instrument; they argue that their proof established that defendant threw the victim through the window in order to incapacitate her.
Defendant challenges the weight and sufficiency of the evidence, contending that the victim accidentally fell through the window during the struggle. We note that there is no reasonable view of the evidence which permits the conclusion that the victim's conduct was volitional (compare, e.g., People v Jackson, 58 A.D.2d 762). We also note the critical role of the trier of fact (see, People v. Piscitelli, 156 A.D.2d 596) in resolving any discrepancies in the evidence (see, People v Mosley, 112 A.D.2d 812, 814, affd 67 N.Y.2d 985). "It is the temporary use rather than the inherent vice of the object which brings it within the purview of the statute." (People v. Carter, 53 N.Y.2d 113, 116.) On the basis of the evidence adduced at trial, we cannot conclude, under all circumstances present herein, that it was improper to construe the plate-glass window as being a dangerous instrument within the definition of Penal Law § 10.00 (13).
Defendant's challenge to the court's instruction that no adverse inference could be drawn from defendant's failure to testify, on the basis that it exceeded the statutory language of CPL 300.10 (2), is unpreserved as a matter of law. (People v Autry, 75 N.Y.2d 836, 838-839.) While we have noted that "the more advisable practice * * * would be simply to give the charge as set forth in the Criminal Jury Instructions" (People v. Lara, 148 A.D.2d 340, affd 75 N.Y.2d 836), defendant has failed to demonstrate that the charge as given so communicated an inappropriate standard to the jury as to warrant exercise of this court's interest of justice jurisdiction. In passing, we note that the appropriate standard was communicated to the jury (see, People v. Autry, supra; People v. Lara, supra).
Defendant has failed to carry his burden of "demonstrating that the prejudicial effect of the admission of evidence * * * for impeachment purposes would so far outweigh the probative worth of such evidence on the issue of credibility as to warrant its exclusion" (People v. Sandoval, 34 N.Y.2d 371, 378). Defendant in this case had a criminal record of 13 misdemeanor convictions for drug-related offenses during the last five years. The court permitted inquiry into the facts underlying three of these offenses, which related to sales of marihuana, but only permitted inquiry into the fact of the conviction for the remaining misdemeanors. The decision as to the extent of inquiry into defendant's past convictions rests in the sound discretion of the Trial Judge (People v. Mackey, 49 N.Y.2d 274, 281-282). The mere fact that defendant has an extensive misdemeanor record does not, per se, lead inevitably to the conclusion that some inquiry into that record would establish that defendant had a propensity for crime. Under the circumstances of this case, the court's ruling did not unduly prejudice the defense.
Finally, the People concede that under the circumstances of this case it was impossible for defendant to commit robbery in the first degree, as defined by Penal Law § 160.15 (1), without concomitantly committing the lesser offense of assault in the first degree, as defined in Penal Law § 120.10 (4). Accordingly, we dismiss the assault conviction as a lesser included count of the first degree robbery (see, CPL 300.40 [b]).
Concur — Ross, J.P., Rosenberger, Kassal, Wallach and Rubin, JJ.