New York Broome County Assault Felony Indictment Dismissal Violent Lawyers Attorney

by admin on October 14, 2010

The People of the State of New York, Plaintiff, v. David Donahue, Defendant

County Court of New York, Broome County


February 7, 1986



The defendant is charged in the first count with assault in the first degree  in that, with intent to cause serious physical injury to one David Beam, he caused such injury to Beam by stabbing him with a knife during a confrontation. The second count charges assault in the first degree as a felony assault under Penal Law, alleging that he caused serious physical injury to Beam “during the course of and in furtherance of the commission or attempted commission of a felony assault upon” Beam. It is conceded that the totality of alleged assaultive conduct occurred during one brief encounter between defendant and his companion McBride and a group which included Beam. Both charges arose out of the same brief encounter, and the felony assault charge used, as its base, the assault charged in the first count. Defendant filed a motion to dismiss the felony assault count of the indictment.


Whether the defendant may be charged with felony assault when the underlying felony is the same assault?


This court disagreed with the People’s claim that the second count was properly within the ambit of prosecutorial discretion. For purposes of interpreting New York’s felony murder statute, the felony that was the basis of the felony murder charge had to be independent of the homicide and of the assault that was merged therein. The same reasoning applied to the felony assault statute. The felony underlying the felony assault count had to be independent from the assault charged in the first count; because it was not, the count had to be dismissed. It appears clear that the Legislature intended to impose strict liability for injuries inflicted during the commission of or immediate flight from a felony. The reference to a “felony” must be qualified to require a felony independent of the assault leading to those injuries. Since the underlying felony here alleged fails to satisfy this qualification, the second count of the indictment is dismissed.


This court hence dismissed the second count of the indictment of the defendant.


These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content.

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The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts.  The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law.  The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Lynchburg County, Prince William County & Fredericksburg, Virginia.  The Maryland offices are in Montgomery County & Baltimore.  The Massachusetts offices are in Boston & Cambridge.  The New York office is in New York City.  The North Carolina Office is in Charlotte, NC which is in Mecklenburg County.  The California office is in Orange County, CA.
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