Dangerous Instrumentality Memo Essay

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Rachel Healy, District Attorney Four Broad Street (555) 987-1123 M E M O R A N D U M TO: FROM: DATE: Michael Cary, Senior Assistant District Attorney Assistant District Attorney #4991 October 29, 2010

RE: State v. Mauer, use of dangerous instrument ______________________________________________________________________________ QUESTION PRESENTED Whether an indictment can be amended to include a charge of first-degree assault under New York law, when the defendant uses pump-style shoes to kick the victim, press-on nails to scratch and slap the victim, and HIV+ blood in an attempt to infect the victim with AIDS. BRIEF ANSWER Yes. The indictment can be amended to include a charge of first-degree assault, because the defendant's use of shoes and artificial nails constitute the use of a dangerous instrument for the purposes of N.Y. Penal Law § 120.10. The attempted transmission of HIV through blood does not constitute the use of a dangerous instrument, because of an exception to the statute for parts of the human body. Under New York law, a dangerous instrument is any object, with the exception of a part of the defendant's body, that is readily capable of causing death or serious physical injury under the circumstances in which it is used. Because the defendant could have caused death or serious physical injury in the way she used her shoes and fake nails, both objects constitute dangerous instruments. However, because the HIV+ blood the defendant used to

infect her victim with AIDS was a part of her body, it does not satisfy the statutory requirements. FACTS On the morning of September 23, 2010, Clarisse Mauer ("Mauer") was arrested for attacking an Asian man of average height and build. The assault occurred in the parking lot outside Hardy's Liquors in the Fallon Avenue area. Police observed Mauer kicking the victim in the knees, feet, and groin using blue "pump-style" shoes. After kicking him, she scratched the victim on the chest and arms using artificial "press-on" nails, and slapped the victim on the chest and face with her right palm. As officers told her to stop, Mauer used one of her nails to puncture her right forearm, causing it to bleed. She then smeared her own blood on the victim's face and arms, exclaiming, "I'm gonna give you AIDS, you piece of shit." The scratching and slapping left multiple lacerations on the victim's chest and arms, and one fake nail was left protruding from the victim's chest. Officers at the scene observed Mauer's blood on the victim's left cheek and right elbow. According to medical records, Mauer was diagnosed HIV+ in 2008. Mauer is a known prostitute with only one prior conviction. During a previous narcotics and prostitution sting, police found an iPhone on Mauer's person containing references to Benjamin Falk. Falk is a known drug dealer in the Fallon Avenue area with suspected ties to regional and national criminal networks. Successfully convicting Falk, who has previously eluded prosecution through the intimidation of witnesses, is a high priority for this office. If Mauer's indictment can be amended to include charges with a lengthy prison sentence, Mauer may be more likely to cooperate with authorities in testifying against Falk. Thus, we are concerned with determining whether Mauer's offense in any way satisfies the statutory definition of first-degree assault, which carries a penalty of up to nine years in prison.

DISCUSSION Assuming all other elements of the charge, Mauer's offense satisfies the "dangerous instrument" requirement of first-degree assault because her shoes and artificial nails were readily capable of causing serious physical injury in the way they were used, and they were not part of Mauer's body. Under New York law, a person is guilty of first-degree assault when "with intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a…