People v. Persaud

Court Discusses the Elements of Attempted Assault and Reckless Endangerment in a Driving While Intoxicated Matter

The defendant on November 30, 1997 drove his construction van into the front of a restaurant after the owner refused to serve him because he appeared intoxicated. After driving his van into the front of the restaurant, he then backed up and crash into the restaurant a second time and almost hitting the owner and several employees. The defendant was later arrested by two policemen who heard the crash after being identified by the owner of the restaurant. The defendant was charged with Reckless Endangerment in the First Degree, Reckless Endangerment consecutively in the Second Degree, Criminal Mischief in the Second Degree, Attempted Assault in the First Degree, Attempted Assault in the Second Degree, Operating a Motor Vehicle While under the Influence of Alcohol, DUI, and Unlawfully Operating a Motor Vehicle. The defendant was convicted of Reckless Endangerment in the First Degree, Criminal Mischief in the Second Degree, Attempted Assault in the Second Degree, and Operating a Motor Vehicle While under the Influence of Alcohol. The defendant appealed on the grounds of that the evidence was insufficient to prove guilt beyond a reasonable doubt of Attempted Assault in the Second-Degree and First-Degree and Reckless Endangerment because the prosecution did not prove that the defendant showed an indifference to human life, that his conduct created a grave risk of death, or that he intended to cause physical injury. Secondly, the defendant argued that there was insufficient evidence to prove guilt of Criminal Mischief in the Second Degree as a matter of law because no expert testimony or documentary evidence was introduced supporting the value of the damages.

The evidence relating to the defendant’s arrest and conviction were analyzed by the court to ascertain whether it was insufficient to prove guilt. Firstly, the defendant’s behavior after being arrest was observed by a police officer suggested that he was intoxicated. The officer observed that the defendant had slurred speech, watery eyes, and a strong smell of alcohol on his breath. As a result, a breathalyzer test was administered in the presence of another police office where he registered .10% blood alcohol content.

The defendant’s conduct of after being refused alcohol showed that he intended to cause injury to the complainant. The charge of Second-Degree Attempted Assault required intent that could be inferred from the conduct of the defendant. A rational jury could infer that the defendant had an intention to inflict serious physical injury to the complainant, who had refused the defendant alcohol. The defendant asserted that based on the evidence it was factually impossible to be charged with attempted assault. However, factual impossibility is not a defense to such a charge because the offense of deliberately performing a prohibited act and impossibility does not negate intent. Therefore, the verdict for attempted assault in the second degree was sustained. Felony DWI was in play.

However, the defendant could not be convicted of both attempted assault and reckless endangerment based on the same acts. A person who intentionally acted to cause serious physical injury could not simultaneously act recklessly to consciously disregard a substantial and unjustifiable risk that would cause serious physical injury. A person is guilty of first degree reckless endangerment if he or she shows a depraved indifference to human life by recklessly engaging in activities that creates grave risk of the death of another person. Therefore, the evidence was insufficient to prove beyond a reasonable doubt that the defendant’s actions created a grave and imminent risk to result in the death of the restaurant owner and other employees of the restaurant. Accordingly, the charge of reckless endangerment in the first degree was dismissed. However, the charge of Endangerment in the Second Degree and Criminal Mischief were upheld.

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