In Campbell (supra), we considered the viability of prosecution for attempt to commit second degree assault under Penal Law § 120.05 (3). That statute permits a defendant to be penalized for a result — injury to a police officer — regardless of whether that result was intended.Summary of this case from People v. Fernandez
Argued October 11, 1988
Decided November 29, 1988
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Charles H. Cohen, J.
Adrienne Hale and Philip L. Weinstein for appellant.
John J. Santucci, District Attorney (Ray Cerreta of counsel), for respondent.
After his apprehension and arrest by two police officers on an attempted rape charge, defendant was indicted on several charges including two counts of assault, second degree (Penal Law § 120.05), for causing injury to the arresting officers with intent to prevent them from performing their lawful duty. Following a nonjury trial defendant was acquitted of second degree assault but convicted of two counts of attempted assault in the second degree which the court had considered over his objection. In his appeal, after an affirmance in the Appellate Division, defendant argues that an attempted assault under Penal Law § 120.05 (3) is an impossibility because the section imposes criminal responsibility for an unintended injury and one cannot be convicted of the crime of attempting to bring about an unintended result. We agree. There should, accordingly, be a reversal of these convictions.
Defendant was convicted of sexual abuse in the third degree in connection with the crime for which he was arrested. The court did not reach the counts of obstructing governmental administration which had been submitted on defendant's request as lesser included offenses of assault in the second degree.
Penal Law § 120.05 (3) provides that: "A person is guilty of assault in the second degree when * * * With intent to prevent a peace officer, police officer, a fireman, including a fireman acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such fireman, or an emergency medical service paramedic or emergency medical service technician, from performing a lawful duty, he causes physical injury to such peace officer, police officer, fireman, paramedic or technician" (emphasis added). Under the plain wording of this subdivision it is evident that a defendant may be convicted even though the injury caused is unintended or accidental. The only proviso is that the injury must occur while the defendant is acting with the intention of preventing the police officer, fireman, paramedic or technician from performing a lawful duty (see, People ex rel. Gray v Tekben, 86 A.D.2d 176, 178, affd 57 N.Y.2d 651; People v Wheeler, 59 Misc.2d 825, 826, affd 36 A.D.2d 549). Unlike other subdivisions of assault second (Penal Law § 120.05) where the Legislature has made intent to cause injury a necessary element of the crime (see, e.g., subds , ,  and ), in subdivision (3) any such requirement has been eliminated. Thus, the crime, with respect to the injury caused, is one of strict liability. The only intent required relates not to the injury but to the circumstances in which it is produced. In short, if a defendant, while intending to prevent one of the persons covered by the statute from performing a lawful duty, causes injury to that person — no matter how or why — he may be found guilty of assault second under subdivision (3) (see, 1 Marks and Paperno, Criminal Law in New York Under the Revised Penal Law § 221). The sole question before us is whether there can be an attempted assault second under this subdivision.
The dissent apparently argues that an intent to injure is required under Penal Law § 120.05 (3) (see, dissenting opn, at 608-609). This contention is directly contrary to the plain wording of the statute and our prior holding in People ex rel. Gray v Tekben ( 57 N.Y.2d 651, 653 [it is possible to commit the crime "without possessing the intent to injure"], affg 86 A.D.2d 176, 178 [where the Appellate Division stated: "Under that section, the only intent required to be proved was that petitioner acted with the intent to prevent a peace officer from performing a lawful duty. Proof of intent to cause physical injury was not required. * * * The crime is thus one of strict liability as far as the injury is concerned. Even if the petitioner caused the injury to the officer accidentally, he was guilty of assault in the second degree if the accident happened while he intentionally acted to prevent the performance of the officer's duty"]).
Under the Penal Law, a person "is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime" (Penal Law § 110.00). An attempt exists as an integral offense having an identity separate from the crime which is being attempted. The rationale of treating an attempt as criminal conduct is "that although the defendant may have failed in his purpose, his conduct is nevertheless culpable and if carried far enough causes a sufficient risk of harm to be treated as a crime in itself (see, e.g., Hall, Criminal Attempt — A Study of the Foundations of Criminal Liability, 49 Yale LJ 789, 816)" (People v Bracey, 41 N.Y.2d 296, 299). Essentially, an attempt to commit a crime consists of an intent to bring about the result which the particular law proscribes and, in addition, an act in furtherance of that intent (2 LaFave and Scott, Substantive Criminal Law § 6.2, at 24; 22 CJS, Criminal Law, § 75 ). To prove an attempt, the People must establish that the defendant acted for a particular criminal purpose, i.e. — with intent to "commit a specific crime (see, e.g., People v Kane, 161 N.Y. 380). `It is not enough to show that the defendant intended to do some unspecified criminal act' (LaFave Scott, Criminal Law, § 59, p 429)" (People v Bracey, supra, at 300). Because the very essence of a criminal attempt is the defendant's intention to cause the proscribed result, it follows that there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended.
Thus, there can be no attempt to commit assault, second degree (Penal Law § 120.05), since one cannot have a specific intent to cause an unintended injury (see, People v Bracey, supra, at 300; People v Zimmerman, 46 A.D.2d 725; People v Brown, 21 A.D.2d 738; State v Almeda, 189 Conn. 303, 455 A.2d 1326; cf., People v Foster, 19 N.Y.2d 150). It makes no difference that the statute calls for a different element of intent — i.e., that the injury must be caused while the defendant intends to prevent the officer from performing a lawful duty. That element of intent relates not to the result proscribed by the statute — causing the injury — but to the circumstances which make that result one for which defendant is strictly liable (see, People v Conyers, 65 A.D.2d 437, affd on other grounds 49 N.Y.2d 174; People v Hendrix, 56 A.D.2d 580, affd on other grounds 44 N.Y.2d 658; People v Hassin, 48 A.D.2d 705; see also, Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 110.00, at 412-413).
Similar reasoning was employed in People v McDavis ( 97 A.D.2d 302, 303-304). Like the assault second statute involved here which requires no proof of intention to cause injury, the manslaughter first statute (Penal Law § 125.20) in McDavis does not require intent to cause death. The manslaughter first statute does, however — again, like the assault second statute here — require proof of intent on a different element: in subdivision (1), intent to produce serious physical injury. Because the statute requires no proof of intent to cause death, the proscribed result, it was held that there can be no attempt to commit that crime (see, People v McDavis, supra, at 303-304).
The People maintain, however, that an attempt to commit assault, second degree (Penal Law § 120.05), may be shown "by proving that a defendant intended to and came dangerously close to, preventing a police officer from performing his duty by means of assaultive behavior". Here, it is argued, the intent to interfere with the police officers' performance of their duties may be shown by defendant's intended, albeit unsuccessful, efforts to injure them while they were attempting to handcuff him.
But the gravamen of a charge under subdivision (3) of Penal Law § 120.05 is not — as the People seem to contend — the defendant's intention to interfere with the policeman's or other listed worker's duties but, rather, the unintended injury to such person while the defendant has the intention of interfering. It is this unintended result for which the statute imposes strict responsibility. The defendant here could not be guilty under subdivision (3) of attempting to inflict an unintended injury, and the People may not make it otherwise through an effort to shift the emphasis from the unintended injury to the defendant's intention to interfere.
The People's argument — that the specific intent required for the crime of attempt may be supplied by defendant's intent to assault the police officer — must fail for another reason. It engrafts onto the attempt crime an element of intent that the main crime lacks. The result is an unacceptable anomaly. The higher crime of assault second is one in which a defendant may be held strictly responsible for an injury without proof of intent to injure; the lesser crime, attempted assault second, under the People's theory, becomes a crime which requires proof of intent to injure — an element not required for the higher crime.
Because — under the People's construction of Penal Law § 120.05 (3) — the lesser crime requires an element not required for the greater, attempted assault in the second degree could not, in any event, be a lesser included offense of assault, second degree (CPL 1.20 ; see, People ex rel. Gray v Tekben, 57 N.Y.2d 651, 653; People v Glover, 57 N.Y.2d 61, 64).
Finally, the People's construction of assault, second degree — making the focus of the crime the interference with the performance of lawful duties rather than the injury to the performer — creates another obvious difficulty. The interference component of Penal Law § 120.05 (3) does not require a successful interference or a completed act but only an intention to interfere. Thus, the crime of attempted assault second, as the People see it, would call for an attempt to intend to interfere, a seeming impossibility (see, People v Lynn, 115 Misc.2d 76, 77 [App Term, 2d Dept]; King v State, 339 So.2d 172 [Fla]; Allen v People, 175 Colo. 113, 485 P.2d 886, 888; cf., State v Wilson, 218 Or. 575, 346 P.2d 115; see generally, 21 Am Jur 2d, Criminal Law, § 158, at 313; 22 CJS, Criminal Law, § 74).
For these reasons, we conclude that the crime of attempted assault in the second degree is a legal impossibility. The holdings in People v Allah ( 126 A.D.2d 778); Matter of Shannon B. ( 122 A.D.2d 268, affd on other grounds 70 N.Y.2d 458); People v Jackson ( 111 A.D.2d 983); People v Lattmen ( 101 A.D.2d 662); People v Roberts ( 99 A.D.2d 761); People v Nelson ( 92 A.D.2d 1036) ; and People v Early ( 85 A.D.2d 752), relied on by the People and cited by the dissent, are not to the contrary. None of those decisions addressed the issue before us now — whether a person can attempt an assault under Penal Law § 120.05 (3).
The order of the Appellate Division, insofar as appealed from, should be reversed and the assault counts dismissed (see, People v Mayo, 48 N.Y.2d 245).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER and TITONE concur with Judge HANCOCK, JR.; Judge BELLACOSA dissents and votes to affirm in a separate opinion.
Order, insofar as appealed from, reversed, etc.
I vote to affirm the Appellate Division order upholding defendant's conviction for attempted assault in the second degree against two police officers. He was charged with attempted rape, first degree, sexual abuse, first degree, unlawful imprisonment, second degree, and two counts of assault, second degree; and he was convicted after a nonjury trial of one count of sexual abuse, third degree, and two counts of attempted assault, second degree. The issue is whether attempted assault under the circumstances of this case is a cognizable crime.
The salient facts are that defendant intended to prevent the police officers from performing their lawful duty by attempting to inflict physical injury upon them. Both arresting officers suffered physical injuries and required medical treatment following their altercation with defendant. Testifying on his own behalf, defendant stated that prior to his arrest he had "main lined" cocaine intravenously, that he became paranoid, and that he had "certainly tried to get away from [the officers]" while they attempted to handcuff him.
A person is guilty of assault, second degree, when "[w]ith intent to prevent a * * * police officer * * * from performing a lawful duty, he causes physical injury to such * * * police officer" (Penal Law § 120.05 [emphasis added]). "A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime" (Penal Law § 110.00 [emphasis added]). Both provisions contain specific intent elements. When only one culpable mental state "appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears" (Penal Law § 15.15). "A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability" (Penal Law § 15.15).
The majority's reversal analysis overrides the plain wording of and specified rules of interpretation for these related statutes. Moreover, strict liability statutes are generally disfavored (Packer, Mens Rea and the Supreme Court, 1962 Sup Ct Rev 107, 109) and are typically crimes against the public welfare of the misdemeanor variety (1 LaFave and Scott, Substantive Criminal Law § 3.8, at 341). In contrast to the guidance offered by the Model Penal Code § 2.05, which permits the substitution of strict criminal liability in lieu of traditional common-law mens rea only for noncriminal violations, the majority holds that a New York class D felony, with an express culpable mental state element, is a strict liability crime.
Overriding the presumption of Penal Law § 15.15 that a culpable mental state of a statute applies to all the elements, absent clear legislative intent to the contrary, the majority simply states, without any supporting authority, that the Legislature contemplated fracturing the intent element of the assault statute so as to apply only to the obstruction of a lawful duty and not to the prescribed physical injury result. It treats the latter as unintended or accidental. Thus, it is concluded that there can be no attempt to commit an assault because one cannot intend to commit an unintended result. This dialectical reasoning trips over its asserted logic right at the starting blocks because the hypothesis that Penal Law § 120.05 (3) is a strict liability felony cannot stand up.
This court has consistently applied the rule of construction mandated by Penal Law § 15.15 that "[i]n the absence of a clear legislative intent to impose strict criminal liability, such construction should not be adopted" (People v Coe, 71 N.Y.2d 852, 855; see, People v Chesler, 50 N.Y.2d 203, 209). We have held offenses to be of the strict liability variety where the statute specifies only an actus reus, where the purpose of the law suggests that it is a strict liability offense and where the legislative history indicates an intent that the offense was one of strict liability (see, People v Nogueros, 42 N.Y.2d 956, 956-957; see also, 1 LaFave and Scott, Substantive Criminal Law § 3.8, at 342-344). None of those situations apply here.
The Legislature instead expressly provided that Penal Law § 120.05 (3), the felony at issue here, was a specific intent crime. The purpose of the statute is to impose criminal responsibility for certain physical injuries arising from intended acts against a special category of crime victim, a growing phenomenon. Legislative history even discloses that the drafters intended that a specific sliding scale of culpability should apply to each of the felony assault varieties, with an attempt to commit those offenses being an available lesser crime as well. "The proposed assault formulation, requiring actual physical injury, places the crime of assault in the main category of offenses (robbery, larceny, perjury, etc.) which are committed only when the offender succeeds in his criminal objective. And as with other offenses of this nature, an unsuccessful endeavor (a common law assault not resulting in a battery) constitutes an attempt. `Attempted assault,' therefore, becomes a logical and meaningful offense under the proposed Article, having considerable utility in connection with certain specific intent assault crimes" (Proposed New York Penal Law, Commission Staff Notes, at 330-331 [emphasis added]).
Contrary to the majority's footnoted characterization of what I am "apparently argu[ing]," my position is simply compelled by the mandate of the relevant Penal Law statutes properly interpreted together. Moreover, the ratio decidendi of People ex rel. Gray v Tekben ( 57 N.Y.2d 651) does not nearly support the proposition promoted by the majority. Gray, charged with assault, second degree (Penal Law § 120.05), asserted as his defense that he lacked intent to interfere with a correction officer. The Judge in that bench trial, sua sponte, considered as a lesser included offense assault, third degree (Penal Law § 120.00 [assault with intent to injure]). On appeal, Gray argued "assault with intent to injure is not a lesser included offense of assault with intent to interfere with a peace officer". He asserted that "[t]hese two intents are quite different and simply cannot be considered to be included within each other". Gray, construing the lesser included offense rule did not hold that Penal Law § 120.05 (3) was a strict liability felony and our opinion was expressly limited to the lesser included issue. That is a matter different in kind and in sweep from the issue in this case — whether there can be such a crime as attempted assault. Searching analysis is required to decide this case, not out-of-context extrapolations from our and the Appellate Division's memoranda decisions in Gray.
If dicta words are to be given such decisive weight, however, then I respectfully suggest that the more relevant, more recent and more persuasive dictum of Matter of Shannon B. ( 70 N.Y.2d 458) on the precise question at hand ought instead to be controlling rather than snippets of language from People ex rel. Gray v Tekben (supra). Chief Judge Wachtler in Matter of Shannon B. (supra) said that "appellant's acts of resistance, which included striking the officer, were acts which, if committed by an adult, would have constituted the crimes of obstructing governmental administration (Penal Law § 195.05) and attempted assault in the second degree (Penal Law § 110.00, 120.05)" (id., at 461 [emphasis added]). A year later, the court announces there can be no such crime.
Also, in one fell swoop, at least a half dozen other appellate determinations on this subject are seemingly overturned (see, People v Jackson, 111 A.D.2d 983; People v Lattmen, 101 A.D.2d 662; People v Roberts, 99 A.D.2d 761; People v Nelson, 92 A.D.2d 1036; People v Early, 85 A.D.2d 752; People v Robinson, 71 A.D.2d 779 [in response to "the assertion that he was convicted of a nonexistent crime", the court held "it was legally possible for defendant to attempt to commit the crime" [id., at 780 (emphasis added)]).
It is instructive to consider this court's discussion of attempted assault as it plays off felony murder. A fleeing criminal who does not intend to kill a pursuing officer "but only intended to frighten or so wound the officer as to prevent his effecting the defendant's arrest" is, under a predecessor statute (Penal Code § 218 ), guilty of either assault or attempted assault (People v Huter, 184 N.Y. 237, 242-244; see also, People v Berzups, 49 N.Y.2d 417). This long-standing implicit recognition of attempted assault against a police officer in the performance of duty, the statutory language itself, and the legislative history of all the related legislative expressions, make a compelling case for affirmance. It is very hard for me to figure out how this court can reject this array of authorities and now simply declare that there cannot be such a crime of attempted assault on the ground that the consummated crime was a strict liability felony when defendant was, in fact, convicted for a specific intent crime.
Even if I were to accept for argument's sake only that Penal Law § 120.05 (3) could be a strict liability felony, the ultimate conclusion that there can be no such crime as an attempt of it is, on its own analysis, odd. Unless I misunderstand the majority, a perpetrator acting with the highest degree of mental culpability — specific intent — cannot be guilty of a lesser included offense — a class E felony — by attempting to commit the object crime which requires no criminal mental state — a class D felony. The paradox of this topsy-turvy result should be plain to all. After all, the higher classified crime is said to require no culpable mental state, while the lower attempt one is said to require the highest known to the law; yet the latter, which imposes a higher elemental and evidentiary burden on the prosecutor, is declared impossible to commit — by definition. The "logic" of this syllogism eludes me. Moreover, the Legislature, I would assume, will be startled to learn it is saddled with such impotency on this flawed threshold premise.
Even in those jurisdictions where an assault is categorized by statutory definition as attempted battery, "the courts have upheld convictions for attempted assault on the ground that the crime of assault — with its usual requirement of present ability to inflict injury — is more limited than attempted battery" (2 LaFave and Scott, Substantive Criminal Law § 6.2, at 21). Surely, then, where the definition of assault embraces the common-law definition of both assault and battery, the crime of attempted assault should be existentially available. Where one acts with intent to prevent an arrest and engages in conduct tending to effect a physical injury in that connection, then an attempt conviction after prosecution on the consummated crimes should be sustained (see, Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art 110, at 412, and its cited cases).
I do not believe that an attempted assault under Penal Law § 120.05 (3) should be analogized in any event with attempts to commit nonspecific intent type crimes or other inapposite offenses dependent on the legal conceit of transferred intent. That would make the sweep of the holding here even more regrettable. Felony murder is surely not a strict liability offense nor has this court ever recognized it as such. Rather the predicate felony "functions as a replacement for the mens rea or intent necessary for common-law murder" (People v Berzups, 49 N.Y.2d 417, 427, supra). Further, the lesser culpable mental state categories of criminal negligence and recklessness will not generally support an attempt conviction to commit crimes premised on such nonintent culpability. Yet, under specific and limited circumstances, despite the express argument that no such crime exists, we have upheld such convictions. In People v Foster ( 19 N.Y.2d 150), we held that defendant could plead guilty to attempted manslaughter, second degree, requiring specific attempt intent, even though the statutory definition of the crime itself was causing death "without a design to effect death" (see also, People v Francis, 38 N.Y.2d 150).
In sum, the assault statute at issue creates a specific intent crime. So a conviction for its attempt based on a founded intent to commit the crime with an act in its furtherance is existentially possible and should be recognized. Abstract logic, even if correctly applied, has no role to play in overriding the Legislature's policy choices and prerogatives in creating, defining and classifying crimes in this State. We should hearken to the settled law, simple justice and plain legal logic which sing out in harmony for an affirmance of the judgment of conviction in this case.
Accordingly, defendant's conviction for attempted assault in the second degree should be sustained.