Opinion
July 7, 1977
Judgment, Supreme Court, New York County, rendered July 29, 1975, convicting the defendant of attempted rape in the first degree, assault in the first degree, and two counts of unlawful imprisonment in the second degree, pursuant to which defendant was sentenced on the rape and assault counts to two terms of from 2 2/3 to 8 years' imprisonment, and on the unlawful imprisonment to two definite terms of one-year imprisonment, to run concurrently, unanimously modified, on the law, on consent of the People, to dismiss the charge of assault in the first degree, and otherwise affirmed. To convict the defendant of intentional assault by means of a dangerous weapon charged in the indictment, the People had to prove, pursuant to subdivision 13 of section 10.00 Penal of the Penal Law that the instrument in question under the circumstances used was capable of causing death or serious injury. In the instant case, the burden of proof was not met. The dangerous instrument postulated was a glass window, and the complaining witness was not pushed through the window but jumped in order to escape from the attempted rape, for which the defendant was properly convicted.
Concur — Kupferman, J.P., Silverman, Evans and Lane, JJ.