New York Criminal Lawyer Blog
A husband was convicted after a jury trial, of attempted murder, assault in the first degree and assault in the second degree. His terms were to run concurrently.
The husband repeatedly stabbed his wife, causing her serious and permanent injuries, and forced her seven year old step-daughter to fall out of a window. A New York DWI Lawyer explained that the principal question is whether the husband was entitled to the requested charge of reckless criminal assault, as a lesser included offense of intentional assault. The husband contends that the court should have granted his request, arguing that it was inherently inconsistent for the court to charge intoxication but not the lesser included offense of reckless assault arising out of that intoxication.
To establish entitlement to a lesser included offense charge, the defendant must show that the additional offense he seeks to have charged is a lesser included offense, an offense of a lesser degree. He must also show that it is theoretically impossible to commit the greater crime without also committing the lesser one and there is a reasonable view of the evidence that would support a finding that he committed the lesser offense but not the greater. A New York Criminal Lawyer contends that with the circumstances presented, it was impossible to commit intentional assault without also committing reckless assault. While the evidence of intoxication may be considered as negating the element of intent, there was insufficient evidence of intoxication for a reasonable person to entertain a doubt as to the husband’s. Thus, as the court argued in opposing the husband’s request for a charge on intoxication, no reasonable view of the evidence show that he was intoxicated. The issue of his intoxication should not have been submitted to the jury, and the court’s failure to charge reckless assault under the theory he was intoxicated was not an error and does not warrant reversal.
A social worker who had interviewed the wife at the hospital ten days after the stabbing noted in her report that she had described her husband’s condition at the time of the attack as a drunken, jealous rage. According to a Nassau County DWI Lawyer, he husband sought to introduce the wife’s characterization as a prior inconsistent statement to impeach her testimony that he was not intoxicated at the time of the attack and that she did not recall stating that he was in a drunken, jealous rage. Over the defense counsel’s objection, the court admitted in evidence the entire report of the interview–in which the wife had expressed her feelings about the attack–not merely the one statement her husband sought to have admitted. The court instructed the jury that the social worker’s statement is received in evidence not for its truth, but to show the statement was made.
In charging intoxication the court contrasted the testimony of the social worker that the wife had told her that her husband had stabbed her in a drunken, jealous rage with her in-court testimony that she did not recall whether or not she had made such a statement. The social worker’s testimony, however, did not furnish direct evidence of intoxication, since the defense counsel sought to introduce the testimony solely as a prior inconsistent statement to impeach the wife and since the court clearly admitted it for that limited purpose. The defendant’s brother testified that he observed the defendant drinking six or seven hours before the crimes. However, drinking the night before the incident is not a sufficient basis for an intoxication charge, especially since the brother of the defendant merely stated his brother was drinking; he did not state that the defendant exhibited any signs of intoxication. The trial court did not refer to the brother’s testimony in its intoxication charge.
The only evidence regarding the defendant’s condition at the time of the incident was the wife’s testimony that her husband was not intoxicated or under the influence of drugs. Moreover, she testified that at the time of the stabbing her husband told her she is going to die. The stepdaughter testified that when her father caught up with her on the stairwell, he told her that if she did not jump out of the window he would stab her and that he pulled her hands from the window’s safety bars, causing her to fall to the ledge on the second floor. It showed that the defendant was acting, not recklessly, but with the intent to cause, at a minimum, serious physical injury.
When a family member is the one who caused you harm, you might be blinded by the intention of protecting that person over your own right to justice. At Stephen Bilkis and Associates, our legal team will make sure that committing justice in your favor is their top priority.