Opinion
570232/03.
Decided December 13, 2005.
Defendant appeals from a judgment of Criminal Court, New York County (Robert M. Stolz, J.), rendered October 31, 2002 after a jury trial, convicting him of assault in the third degree (Penal Law § 120.00), and imposing sentence.
Judgment (Robert M. Stolz, J.), rendered October 31, 2002, affirmed.
PRESENT: McCooe, J.P., Davis, Schoenfeld, JJ.
The complainant, a talent scout, had gone with two friends to a Manhattan nightclub where musicians were being showcased. In the crowded basement lounge, someone bumped into her, causing her to spill her drink on Lisa Brown's coat. After the complainant apologized and tried to assist Brown in cleaning off the coat, the two got into an altercation. The complainant and her companions testified that Brown verbally abused all three. Eventually, defendant intervened and, according to one of the complainant's companions, asked Brown if he should "cap" the complainant. Defendant approached the complainant, looked her in the eye, and punched her. She swung back, and defendant then hit her in the mouth, knocking her to the floor. Defendant then kicked her at least twice in the lower back as she was trying to get up. Brown's version of the confrontation was that the complainant was the aggressor, that she herself then kicked the complainant, and that defendant was merely a bystander.
Defendant was arrested at the scene, and charged with intentional and reckless assault in the third degree. At trial, after defendant's unsuccessful motion to dismiss the count of reckless conduct, the jury acquitted defendant on the intentional count, but found him guilty of reckless assault. Defendant now argues that the misdemeanor information was jurisdictionally deficient with regard to reckless assault, and in any event, the evidence did not support such a charge. We disagree.
The prosecutor's information charged defendant with striking the complainant about the face with a closed fist, causing her lip to swell, and repeatedly kicking her in the back, causing lacerations and substantial pain. Such an allegation should not be subjected to an overly restrictive or technical reading ( People v. Casey, 95 NY2d 354, 360), so long as it fairly gives the accused sufficient notice to prepare a defense.
Defendant argues that at best, the People made out a case only of intentional assault, which the jury rejected, and that the evidence was lacking with regard to reckless conduct. "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists" (Penal Law § 15.05). The same conduct that amounts to recklessness may or may not also meet the definition of an intentional act. In People v. Cameron ( 123 AD2d 325), the court rejected the defendant's argument that striking his victim in the face with a glass beer pitcher could only be viewed as intentional conduct, and not reckless conduct. ( See also People v. Tankleff, 199 AD2d 550, 554, affd 84 NY2d 992; accord People v. Cole, 233 AD2d 247, lv denied 89 NY2d 984.) In the context of this rapidly unfolding barroom incident in an emotionally charged setting, the jury reasonably could have found that the defendant did not intend to cause injury to the complainant, and instead acted recklessly.
We have reviewed the defendant's remaining argument and find it without merit.
This constitutes the decision and order of the Court.