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Sidewalk isn’t a dangerous instrument: judge dismisses prosecution’s argument

Brooklyn Supreme Court Justice Michael Gary. Eagle file photo

Brooklyn Daily Eagle

A New York City sidewalk was deemed an innocuous object by a Brooklyn Supreme Court judge after prosecutors tried to label the sidewalk a dangerous instrument used in an assault case.

After a night of New Year’s Eve drunken revelry, defendant Andrew McElroy hailed a cab from Manhattan to Williamsburg. An argument began between McElroy and the cab driver Key Kim, initially over the dropoff location, that then escalated to heated disagreement when defendant McElroy refused — or forgot — to sign the credit card receipt.

Kim exited the vehicle yelling after defendant McElroy, who then turned and punched Kim in the head once or twice, according to court records. Kim fell backwards, face up, onto the adjoining sidewalk. He suffered significant injuries, including severe brain injury and several skull fractures. Kim is presently on life support in a nursing home.

Investigators apprehended McElroy and charged him with assault with the intent to cause serious physical injury and assault with the use of a dangerous instrument. In the prosecution’s estimation, the sidewalk was utilized as a dangerous instrument, and it was the effect of falling onto the sidewalk that caused Kim’s substantial injuries.

A Brooklyn jury acquitted McElroy of assault with the intent to cause serious physical injury, and McElroy challenged the prosecution’s contention that the sidewalk was used as a dangerous instrument.

In New York, an innocent object, such as a shoe, can be viewed as a dangerous instrument only when the object is being used intentionally used for that purpose: to cause danger and harm.   “Any instrument, article or substance, no matter how innocuous it may appear to be when it is used for legitimate purposes becomes a dangerous instrument when it is used in a manner which renders it capable of causing serious physical injury,” case law dictates.  

In a comparative case, New York’s high court held a sidewalk to be a dangerous instrument where the defendant held the victim’s head in his hands and deliberately and repeatedly slammed the victim’s head against the concrete sidewalk.

McElroy’s attorney argued a distinction in the facts involving his client’s assault charge. Here, McElroy did not intend to use the sidewalk as an instrument to facilitate or further his assault on Kim. Specifically, McElroy did not strike Kim with the intention that he would fall onto the sidewalk, which would further injure him.

The prosecution countered by introducing facts from a case, People v. Mableton, where a New York court upheld the reckless assault conviction of a defendant where the dangerous instrument was a bathtub full of hot water, used to scald a child.

Brooklyn Supreme Court Justice Michael Gary found distinguishing characteristics in the prosecution’s case analysis. Namely, in the Mableton case, the defendant admitted that he intentionally filled the bathtub with hot water, presumably with the intent to harm use the scalding hot water as an instrument to harm the child.

Gary surmised that if the prosecution were to prevail with its argument that an adjourning sidewalk was a dangerous instrument solely because it contributed to Kim’s injuries, then anytime anyone hit the sidewalk or fell down the stairs, an assault charge could be sustained.  

“If the People's interpretation of `use’ of a dangerous instrument were correct, then every instance where a victim is simply punched and consequently falls onto a New York City street and suffers physical or serious physical injury as a result, could constitute intentional or reckless assault as a felony,” Gary wrote in his opinion on McElroy’s case.

Believing that McElroy did not intend to use the sidewalk as a instrument to further his assault on Kim, Gary ordered that McElroy’s charge be reduced from reckless assault in the third degree, thus eliminating the aggravating factor of dangerous instrument.

“Mr. Kim's grievous injuries do not substitute for the absence of evidence that the defendant was aware of and used the sidewalk as a dangerous instrument,” Gary noted, “…[however] there was ample evidence to establish the lesser included offense of reckless assault. Accordingly, the conviction for Assault in the Second Degree is reduced to Assault in the Third Degree.”

March 6, 2014 - 2:00pm


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