People v. Davis
72 N.Y.2d 32 · 1988
Facts
On August 1, 1982, at approximately 6:15 a.m., the defendant and another man confronted Ian Shillingford, demanding money for a debt. During a scuffle, the defendant produced a pistol, which fired when it hit the ground after he dropped it. The defendant then repeatedly struck Shillingford with the weapon. Later, a bystander alerted police to the defendant, who fled. During a police pursuit, the defendant turned, assumed a "combat stance," and pointed the gun at the windshield of the police car, pulling the trigger, but the gun did not fire. He continued to flee, again pointing the pistol at officers, at which point an officer shot and wounded him. The recovered gun had a spent shell in the chamber that had not been ejected.
Procedural history
The defendant was convicted after trial of first degree reckless endangerment and second degree criminal possession of a weapon. The Appellate Division modified the judgment, finding insufficient evidence for reckless endangerment but affirming the weapon possession conviction. The People appealed the dismissal of the reckless endangerment charge, and the defendant cross-appealed the weapon possession conviction, bringing the case to this court.
Issue
1. Does pointing a gun at another and pulling the trigger constitute reckless endangerment when a jammed cartridge prevents the gun from firing? 2. Was the count in the indictment charging second degree criminal possession of a weapon duplicitous because it allegedly charged two separate instances of possession?
Holding
1. No, pointing a jammed gun that cannot fire does not create a grave risk of death and therefore does not constitute reckless endangerment. 2. No, the weapon possession charge was not duplicitous because the bill of particulars clarified it referred to a single incident.
Rule
First degree reckless endangerment requires a person, under circumstances evincing a depraved indifference to human life, to recklessly create a grave risk of death to another. A person acts recklessly by disregarding a substantial and unjustifiable risk. The crime focuses on the objective risk created by the conduct, not intent, and generally requires the weapon to be fired or capable of firing. Factual impossibility eliminates the essential risk for reckless endangerment, unlike attempted intentional acts where impossibility does not negate intent. An indictment must provide fair notice and is void for duplicity if it charges more than one offense, but a bill of particulars can cure such a defect by clarifying the specific offense charged.
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