Second Department Rejects People's Appeal
Andrew McElroy was convicted of second-degree assault, requiring proof of use of a "dangerous instrument," in connection with an incident in which he punched a taxi driver during a dispute about the fare. The "dangerous instrument" allegedly used by the defendant was the sidewalk on which the complainant hit his head after falling to the ground.
The trial court granted Mr. McElroy's post-verdict C.P.L. 330.30(1) motion to reduce the conviction to third-degree assault on the ground that the evidence was legally insufficient to establish that the sidewalk constituted a "dangerous intrument."
The Second Department affirmed the trial court's ruling, explaining that, based on the evidence, no rational person could have concluded that Mr. McElroy "recklessly used the sidewalk to cause serious physical injury" to the complainant.
Joshua Levine briefed and argued the case on behalf of Appellate Advocates.