People v Cowan
Annotate this CaseDecided on July 12, 2004
Justice Court of Town of Webster, Monroe County
The People of the State of New York,Plaintiff,vs.
against
Paul Cowan,Defendant.
10283-03
Michael C. Green, District Attorney(Aaron Sperano, Esq., Assistant District Attorney) for plaintiff. Stephen M. Leonardo, Esq., Attorney for the Defendant.
Thomas J. DiSalvo, J.
Facts of the Case
DiSalvo, J.
The defendant was charged with Assault in the Third Degree in violation of Penal Law Section 120.00(2), i.e. recklessly causing physical injury to another person.
The information accuses the defendant of assaulting a Terri G. Kiah on January 4, 2003 at 2003 at 6:30 P.M. at 1839 Ridge Road in the Town of Webster, County of Monroe and State of New York. The complaint alleges that "...the defendant grabbed the victim's right with his left hand and squeezed it while arguing with her. That this action allegedly broke the victim's left index, ring and pinky fingers." The supporting deposition of the victim, who was the defendant's live-in girl friend, indicated that she had seen a girl putting something into the defendant's truck. She went into a local tavern "Larry's Old Ridge Bar", at about 1:00 P.M., where she believed the defendant had gone. However, when she could not find him in the bar, the complaintant looked for him in the adjoining parking lot, where she saw him leaving a girl's car. Whereupon the parties got into an argument and the girlfriend went home. Sometime between 3:00P.M. and 4:00 P.M. the girlfriend called the bar seeking to speak to the defendant, who refused to speak to her at that time. At about 6:30 P.M., when the defendant did not come home, the complaintant again went to the bar looking for the defendant. In so doing, she got her car stuck in a snow bank. The girlfriend went into the bar and told the defendant about the car. The defendant told his girlfriend to stay in the bar while he extricated her vehicle. However, she refused to remain inside and followed him to the car. During that time she grabbed the collar of his coat to try to get him to speak to her. The defendant told her to let go, but she refused to do so. As a result, the defendant used his left hand to brush off the victim's left hand from the collar of his coat. However, the defendant continued to hold on to the collar with her right hand. The defendant allegedly grabbed the fingers of her right hand with his left hand and squeezed her hand breaking the fingers in question. He then went back into the bar. [*2]
An arrest warrant was issued by this court for both intentional and reckless assault in the third degree, to wit: P.L. 120.00 (1) and (2). The defendant was arraigned on May 14, 2003 and released on his own recognizance. On June 4, 2003 the defendant appeared with his attorney and requested an adjournment to file motions. The matter was eventually adjourned for argument of motions on October 1, 2003. After review and argument of said motions the court, by prior written decision, dismissed the charge of assault in the third degree predicated on P.L. 120.00(1), i.e. intentional assault.
On February 13, 2004, the matter was set down for a bench trial. The balance of said trial was adjourned to June 11,2004, at which time the trial was completed. At the trial the people presented the complaintant, Terri G. Kiah, as the only witness, since the medical issues were stipulated by the parties. The defendant then testified on his own behalf.
Legal Analysis
Reckless Assault in the Third Degree, is set out in Penal Law Section 120.00(2), which states that "A person is guilty of assault in the third degree when he recklessly causes physical injury to another person."
Penal Law 15.05(3) defines the term "Recklessly" as follows: "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. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto."
In the present circumstance the victim herein was attempting to physically force the defendant to listen to her. In fact the victim in her supporting deposition stated that
"I asked him to talk to me and he turned as though he was going to go back to the bar
without helping me. I then grabbed the collar of his coat to stop him from leaving an to make eye contact with him. I was trying to get him to listen to me. He told me to "'let go'", and I said no, not until you answer me. Paul is left handed and he brought up his hands to get me to let go. At this point I was not raising my voice. He knocked off my left hand easily, but I held on with my right hand. He brought up his left hand and grabbed the fingers on my right hand to remove them from my his coat. He pried [emphasis added} my fingers off his coat...."
In fact, the complaintant was the initial aggressor in this situation. The defendant wished to be [*3]left alone. He successfully got his girl friend to take her left hand off his coat collar, only to
have her grab said coat collar with her other hand. At that point the defendant may have been
able to charge the victim with Harassment in the second degree, Penal Law 240.26. Again, the
defendant's girl friend was the initial aggressor in this case. She is attempting to use the law as
both a sword and a shield. First she acts in a harassing manner, then she objects to the defendant
attempting to avoid her actions.
Before dealing with defense of justification, the court must address the elements of the charge of reckless assault, pursuant to P.L. 120.00(2). There are two elements of said charge.First, that the defendant on the date and place in question caused physical injury to the complaintant. Second, that the defendant caused said injury recklessly. The defendant, through his attorney, stipulated to the injury of the defendant. However, the defendant, in sum and substance, argued said injury was not inflicted "recklessly". As previously stated, Criminal Procedure Law Section 15.05(3) defines the term "recklessly". The sine qua non of being reckless is whether the person charged with reckless assault was "aware of and consciously disregards that risk" associated with physical injury to another person. In other words, the people have the burden of showing, not only that the complaining person was injured, but that the defendant considered that his actions could probably lead to physical injury of another person, and knowing that risk, proceeded to act accordingly. In this case there is no proof that the defendant had time to consider his actions. In fact the proof is just the opposite. Namely, that the complaintant continued to pester the defendant, even as he tried to avoid her. The complaintant failed to heed the defendant's pleas to be left alone. The complaintant refused to leave her hands off the defendant's clothing, despite being asked to do so and despite having her left hand physically removed from the coat of the defendant. The situation began to escalate as the defendant tried to avoid the advances of the complaintant. The defendant then grabbed the complaintant's right hand, breaking her fingers in the process. At no time did the people allege that the defendant had time to contemplate his actions, while being harassed by the complaintant. In fact the testimony suggest just the opposite. Namely, that the defendant had no time to consider his actions, as he attempted to extricate himself from the situation, only to be pursued by the complaintant without abatement.
The court also must also consider the credibility of the complaintant. One of the factors, which the court can consider is the fact that the complaintant took a considerable period of time before filing charges against the defendant. The incident in question took place on January 4, 2003. The date of the complaint and supporting depositions was May 2, 2003. Thus, it would seem that the period of time that went by between the incident and the filing of the charges against the defendant was not, under all the circumstances herein, reasonable from the standpoint of credibility.
Thus, since the people failed to prove the second element of the charge against the
defendant, beyond a reasonable doubt, namely that he acted recklessly, I must find the defendant not guilty of the charge of reckless assault, as defined by Penal Law Section 120.00(2). In so [*4]doing, I do not need to address the issue of justification. In addition, all orders of protection are hereby vacated. This constitutes the decision and order of this court.
Dated: Webster, New York
July 12, 2004E N T E R,
______________________
Hon. Thomas J. DiSalvo
Webster Town Justice
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