DECISION AND ORDER Defendant Victor Lopez was indicted on October 25, 2021, for Attempted Assault in the First Degree, in violation of Penal Law §§110/120.10(1), and Reckless Endangerment in the Second Degree, in violation of Penal Law §120.20. On May 1, 2023, this Court commenced a trial, and on May 9, 2023, the jury returned a verdict of guilty of Attempted Assault in the First Degree. The Defendant now moves for an order, pursuant to Criminal Procedure Law (“CPL”) §§330.30(1) and 330.50(1), vacating his conviction and ordering a new trial, on the ground that the evidence at trial was insufficient to prove that he attempted to cause serious physical injury by means of a dangerous instrument. For the reasons set forth below, the Defendant’s motion is denied. I. Evidence Adduced at Trial At trial, the People presented evidence that on October 11, 2021, at approximately 4:00 p.m., the complaining witness was standing on the subway platform of the West 125th Street station, waiting for a downtown local train. The complaining witness noticed the Defendant, whom she did not know, standing approximately 15-20 feet from her. He was looking directly at her with an “angry” facial expression. The Defendant then “ran towards” the complaining witness. As the Defendant approached her, the complaining witness backed away from the Defendant, moving diagonally in the direction of the subway tracks. When the Defendant reached the complaining witness, she was standing on the platform perpendicular to the track bed, with her right side closest to the tracks, and her feet on the yellow warning line at the platform’s edge. The Defendant then pushed the complaining witness toward the tracks. Specifically, the Defendant moved one or both hands1 outward in a “pushing” motion, making contact with complaining witness’s back and left shoulder area. The Defendant’s push propelled the complaining witness in the direction of the tracks. She fell towards the tracks, with half of her body in the air, and half of her body on the platform. A bystander grabbed her as she was falling,2 which prevented her from tumbling into the tracks. The Defendant then started to approach the complaining witness again, taking three or four steps in her direction. The complaining witness positioned herself behind the bystander, and the Defendant stopped. Approximately two minutes later, the B train arrived at the platform. The Defendant entered the train, and was subsequently apprehended inside the subway car by the NYPD. At trial, the People also presented evidence regarding the subway platform and tracks. The track bed at the West 125th Street station is approximately five feet below the platform. The track bed consists of solid concrete ground, with wooden planks attached to iron rails, and an electrified third rail. The third rail is powered by approximately 600 volts of electricity, and could be fatal if touched. Trains enter and leave the West 125th Street station on a regular basis. II. Analysis “After rendition of a verdict of guilty and before sentence,” a court may set aside the verdict if there is a ground in the record that, if raised on appeal, “would require a reversal or modification of the judgment as a matter of law by an appellate court.” (CPL §330.30[1]) A trial court’s inquiry pursuant to §330.30(1) is generally limited to a determination of whether the trial evidence was “legally sufficient to establish the defendant’s guilt of an offense of which he was convicted.” (People v. Carter, 63 NY2d 530, 536 [1984].) Legally sufficient evidence is “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof.” (CPL §70.10[1]) A verdict is legally sufficient if the facts, “viewed in the light most favorable to the prosecution,” establish a “valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime has been proven beyond a reasonable doubt.” (People v. Gordon, 23 NY3d 643, 649 [2014].) According to the defense, the evidence was legally insufficient to prove that the Defendant attempted to “use” a dangerous instrument when he pushed the complaining witness towards the subway tracks. The Defendant contends that he was not “brandishing” any dangerous object, and in any event, the People failed to specify what part of the subway tracks would constitute a “dangerous instrument.” Additionally, the Defense asserts, there was insufficient evidence to establish the Defendant’s intent to use a particular object to cause serious physical injury.3 These arguments are rejected. A person commits assault in the first degree when, “with intent to cause serious physical injury to another person, he causes such injury to such person…by means of a deadly weapon or a dangerous instrument.” (PL §120.10[1]) A person is guilty of attempted first-degree assault when, with the intent to commit assault in the first degree, “he engages in conduct which tends to effect the commission of” that crime. (PL §110.00) Conduct “tends to effect the commission” of a crime where that conduct comes “very near” or “dangerously close” to completion of the crime. (People v. Lendof-Gonzalez, 36 NY3d 87, 92-93 [2020]; People v. Acosta, 80 NY2d 665, 671 [1993].) A “dangerous instrument” is “any instrument,” which, “under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.” (PL §10.00[13]) Any instrument, “no matter how innocuous it may appear to be when used for its legitimate purpose, becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury.” (People v. Carter, 53 NY2d 113, 116 [1981].) Under this “use-oriented approach,” it is the “temporary use rather than the inherent vice of the object which brings it within the purview of the statute.” (Id.) One can injure a victim “by means of” an instrument without actually possessing that object. (People v. Warren, 98 AD3d 634, 636 [2d Dept 2012].) For example, “if an assailant throws someone in front of a moving bus or subway train, he can commit assault without ‘possessing’ the bus or subway.” (People v. Muhammad, 17 NY3d 532, 542 [2011]; see People v. Thomas, 169 AD2d 515, 516 ["A moving subway car can be considered a dangerous instrument"]; People v. Cephas, 110 Misc 2d 1075, 1077 [Sup Ct, NY Cty] ["A subway train, then, can be a dangerous instrument in some cases"].) Similarly, a concrete surface can be “used” as a dangerous instrument, where the People establish the defendant’s purposeful use of the concrete to injure the victim. (See People v. Galvin, 65 NY2d 761, 762-63 [1985].) “Whether or not an instrument is dangerous is evaluated by the temporary use to which it is put.” (Cephas, 110 Misc 2d at 1077.) “Although this will generally mean that harm, in fact, must be inflicted, it need not always be so.” (Id.) Where “danger is reasonably foreseeable given the specific use” of the instrument, “it is not necessary that the harm be done before being able to find that the instrument is dangerous.” (Id.) In such instances, a defendant’s attempted use of the instrument can satisfy the definition. (See People v. Ibarra, 273 AD2d 87, 87-88 [1st Dept 2000] [evidence sufficient to support "the element of use of a dangerous instrument" where defendant "attempted to shove" complaining witness onto subway tracks, and complaining witness regained his balance, did not fall into tracks, and did not sustain injury].) Viewed in the light most favorable to the People, the facts adduced at trial established that the Defendant intended to cause serious physical injury to the complaining witness by pushing her into the subway tracks, and that he engaged in conduct which came “very near” to completing this crime. (See Acosta, 80 NY2d at 670.) The Defendant ran directly towards the complaining witness, who backed away from him; when he reached her, the complaining witness was already standing on the yellow warning line bordering the tracks. The Defendant pushed the complaining witness in the direction of the tracks, towards a five-foot drop into a concrete bed, an electrified third rail, and wood and iron tracks where subway trains regularly run. Had a bystander not intervened, the force of the Defendant’s shove would have carried her over the edge of the platform and into the tracks. Contrary to the Defendant’s contentions, the Defendant need not have “brandished” any part of the subway track to “use” it as a dangerous instrument. (See Warren, 98 AD3d at 636.) In pushing the complaining witness — who had backed away from his approach and was thus already standing on the yellow warning line — squarely in the direction of the tracks, the Defendant “used” the subway tracks in a manner that was “readily capable of causing serious physical injury.” (Carter, 53 NY2d at 116.) The cases cited by the Defendant are not to the contrary. In People v. McElroy, 139 A.D.3d 980 (2d Dept 2016), the Court held that a sidewalk was not a “dangerous instrument” where the defendant punched the complaining witness in the face, and the complaining witness fell backwards, striking his head on the concrete.4 And in People v. Ames, 217 A.D.3d 510 (1st Dept 2023)5, the First Department vacated the defendant’s second-degree assault conviction, where the People’s evidence “was consistent with the victim merely tripping and falling onto” subway tracks “during an altercation with defendant.” (Ames, 217 AD3d at 511.) The Court did not hold that subway tracks were not a dangerous instrument as a matter of law. To the contrary, the Court determined that the People failed to establish the requisite “intent to use the tracks” to injure the victim. (Id.) Here, in contrast, the jury could easily have concluded that the Defendant intended to use the tracks to injure the complaining witness. The complaining witness did not testify that the Defendant bumped into her, that she tripped, or that she fell due to incidental contact with the Defendant. There was no pre-existing relationship between these individuals, and no evidence of an altercation preceding the incident. The Defendant did not speak to the complaining witness either before or after the incident, for example, to apologize for accidentally bumping into her. Rather, the Defendant looked directly at the complaining witness with an “angry” expression. He then ran approximately 15-20 feet down the platform towards her. Upon reaching her, he pushed her towards the tracks. Notably, the Defendant did not push the complaining witness in the direction that he himself was traveling, that is, down the length of the platform. Nor did he push her towards the middle of the platform. Instead, he pushed her squarely in the direction of the tracks. And after the complaining witness regained her balance with the help of the bystander, the Defendant began to approach her a second time. The People thus presented sufficient evidence of the Defendant’s intent to use the subway tracks to cause serious physical injury to the complaining witness. (See Galvin, 65 NY2d at 762-63.) It is of no moment that the complaining witness was not actually injured. It is eminently foreseeable that shoving a person into subway tracks could cause serious physical injury. Accordingly, “it is not necessary that the harm be done” to find that the subway tracks constitute a dangerous instrument. (See Cephas, 110 Misc 2d at 1077.) Moreover, the lack of injury is reflected in the Defendant’s indictment and conviction for attempted assault in the first degree, rather than first-degree assault. Nor were the People required to specify, at a granular level, the particular aspect of the subway tracks that the Defendant intended to use as the “dangerous instrument.” While the use of a dangerous instrument is an element of assault in the first degree, “the particular identity of the dangerous instrument is not an element” of this offense. (People v. Kaid, 43 AD3d 1077, 1082-83 [2d Dept 2007]; see People v. Flanders, 25 NY3d 997, 999 [2015].) There is no concern here that individual jurors might vote to convict the Defendant on the basis of different offenses. There is only one offense alleged here: attempting to push the complaining witness onto the subway tracks. Simply put, common sense instructs that intentionally shoving a person into subway tracks is inherently dangerous, and is readily capable of causing serious physical injury. (See, e.g., Ibarra v. Burge, 2002 WL 1467756, at *7 (S.D.N.Y. 2002 ["A jury could have concluded that it is common knowledge among residents of New York City that the subway's electric third rail is inherently dangerous and that serious injury or death may result from contact with it. The Court may take judicial notice that the electric third rail is part of the subway tracks at every New York City subway station, and that a New York jury would be aware of this."].) The People presented evidence of a significant drop — five feet — from the subway platform, to the hard, concrete surface of the track bed. The track bed contains not only wooden planks attached to iron rails, but, significantly, an electrified third rail, powered by approximately 600 volts of electricity. Indeed, a representative from the MTA testified that the third rail could easily be fatal if touched. Finally, subway trains regularly travel along these rails; in fact, a train arrived on those very tracks approximately two minutes after the incident. The People were not required to prove the Defendant’s intent to use one particular aspect of the subway tracks to seriously injure the complaining witness, to the exclusion of any other dangerous feature of the tracks. III. Conclusion For the reasons set forth above, the motion is denied. This opinion constitutes the decision and Order of the Court. Dated: September 12, 2023
