People v Zacatenco-Romano

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[*1] People v Zacatenco-Romano 2014 NY Slip Op 50046(U) Decided on January 22, 2014 Supreme Court, Kings County D'Emic, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 22, 2014
Supreme Court, Kings County

The People of the State of New York, Plaintiff,


Alejandro Zacatenco-Romano, Defendant.


Attorney for the People:

Kenneth P. Thompson

District Attorney, Kings County

350 Jay Street

Brooklyn, NY 11201

by ADA Joanna Malikouzakis


Attorney for the Defendant:

Joseph Indusi Esq.

Brooklyn Defender Services

177 Livingston Street, 5th Floor

Brooklyn, NY 11201


Matthew J. D'Emic, J.

Defendant moves the court to dismiss the count of the indictment charging Attempted Assault in the First Degree for legal insufficiency.

The motion is denied.

The allegations supporting the indictment are that the defendant grabbed the complainant, choked her, took a knife and swung it towards her head and chest, cutting her thumb.

Defendant contends that the evidence presented to the grand jury does not support the charge of Attempted Assault in the First Degree (PL §110/120.10[1]).

The complainant, however, testified that the defendant "aimed it towards my head" but in defending herself she was struck on the right thumb instead. She also testified that "he attacked me, but his goal was to put it through my head and I actually defended myself and that's how I got the cut on my thumb." She added that he told her he was going to kill her during the [*2]struggle over the knife.

Defendant's intent to seriously injure the complainant can be inferred from the testimony that he repeatedly aimed for the victim's head and chest, and that it was due to her efforts to fight him off and defend herself that she was not injured more seriously.

The defendant's intent can also "be inferred from the defendant's conduct and the surrounding circumstances" (see: People v Bracey, 41 NY2d 296). All these acts, if proven, could establish specific intent to cause serious physical injury which is an element of the crime charged.

The second element needed to be established is "attempt," that is that the defendant acted to carry out his intent. As indicated, the complainant told the grand jury that the defendant repeatedly swung a knife at her head and chest. Defendant's actions are sufficiently overt to support an attempt. "Whenever the acts of a person have gone to the extent of placing it in his power to commit the offense otherwise interrupted and nothing but such interruption prevents his commission of the offense, at least then he is guilty of an attempt to commit the offense" (People v Sullivan, 173 NY 122).

Finally, a grand jury "need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law" (People v Calbud, Inc., 49 NY2d 389).

Accordingly, the court finds that the people have established the elements of the crime charged with enough sufficiency to render the indictment legally sufficient.

This constitutes the Decision and Order of the court.

______________________________Matthew J. D'Emic