One of the factors regarding that would be the nature of the injury; is there an injury, what is in fact the injury that is sustained; is it painful, is it substantial pain; is the person disfigured? We live in a crazy time now where people get slashed! Sometimes it leaves scars, sometimes their fingers perhaps may not be pointing the way they were pointed, maybe their shoulder or bones or something is just not the way it was, some sort of a disfigurement. Working from the nature of the injury, now we take a step back as to what caused that injury, was it by a weapon, was it by a deadly weapon, was it by a dangerous instrument; what actually is the difference between the two?
In New York, there are actually definitions to discuss what is in fact a deadly weapon, what is a dangerous instrument, maybe the injury was by a motor vehicle, what are the situations of motor vehicles; how did that happen, was the person driving recklessly, did they intend to hit somebody, for instance. You’re mad at somebody, you chase them down the block with the car and you hit them, as opposed to just driving recklessly which would be, I didn’t intend to hurt anybody but I was perhaps speeding. In Nassau County on Long Island, what started to happen around the country, some of the prosecutors are looking at driving while intoxicated, the DWI or the DUI!
Was there an accident and the person was under the influence of something; where in New York, we’ve had people charged with actual murder charges if somebody is killed, not just an assault, not just a manslaughter but they actually have charged them with murder which is really the most aggravated form of assault we have. The injury resulting to the person being the death as opposed to the person surviving and being the victim of some form of an assault. All of those factors will be factored into determining what is the charge and what do we, as defense attorneys, do to defend our clients from the charge and whether it’s the proper charge.
The Definition Of A “Deadly Weapon” In An Assault With A Deadly Weapon Charge
Deadly weapons actually are defined in the penal law to make it a little less problematic but still some of those are. For instance, I’ll read you the definition of a deadly weapon is a loaded weapon from which a shot, readily capable of producing death or other serious physical injury may be discharged. That’s their way of saying a gun or some sort of a gun. It doesn’t have to produce a bullet because they don’t say a bullet, it’s just a shot. Sometimes, as our society has evolved; an airsoft gun, a pallet gun, a paintball produces some sort of a shot and was it loaded and is it readily capable of producing death or other serious physical injury.
So, taking a look at the totality of the circumstances, in paintball, you get shot with these things all the time but you’re wearing some form of protection, it’s not used to produce that but if somebody takes it and they want to shoot somebody in the eye or a close range with no protection, that is readily capable of producing death and that in fact would become a deadly weapon as opposed to something that people can play with on the weekends. We have switch blade knives, we have gravity knives, and they have what’s called ballistic knives. There are metal knuckles, metal knuckle knives, there are daggers, Billy-jacks so some of these things that we have seen that by law, it says if you have those particular items those by definition are deadly weapons.
Whether you use it as a deadly weapon or you even knew it was a deadly weapon, it doesn’t matter; by definition, that is a deadly weapon in New York. That’s different from dangerous instruments that we have.
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