West Virginia & Virginia Law

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Table of Contents
Memorandum.............................................................................................................................................3
Statement of Assignment............................................................................................................................3
Summary of Issues.......................................................................................................................................3
Facts............................................................................................................................................................3
Discussion and Analysis...............................................................................................................................4
Conclusion...................................................................................................................................................7
Recommendation........................................................................................................................................7
Appendix.....................................................................................................................................................8
 Memorandum

To: Supervising Attorney

From: Paralegal

Date: April 28, 2018

RE: Ms. Jeanette Sumter charge of assault in the second degree against Ms. Ruth Stein.

Statement of Assignment

You have asked me to prepare an interoffice memorandum addressing the question whether; on

the basis of the facts presented the state could prove beyond a reasonable doubt that Ms. Stein

was guilty of assault.

A. Summary of Issues

Under New York Law, did Ms. Stein assault Ms. Jeanette Sumter in an incident that resulted in a

fight between the two, Ms. Stein was found carrying a can of aerosol mace, and can the state find

her guilty of assault in the second degree.

B. Facts

Ms. Stein and Ms. Jeanette were involved in a fight outside a bar in the evening, they were both

heavily intoxicated. It is not clear how the fight started, both women claim that the other

provoked the fight and there were no witnesses who saw how the fight started. But a crowd

gathered while the fight was going on and one of the passerby called the police. Upon being
notified that the police had been called, the two left the scene of incident, Ms. Stein went back

into the bar, and Ms. Sumter walked away from the scene where the police found her a several

blocks away on Ms. Stein pointing her out to them.

On arrest both women were searched, Ms. Sumter was found with a small handgun in her purse,

although she did not use it during the fight, she was charged with possession of a deadly weapon,

she was tried, convicted and given a three-month sentence that was suspended. Ms. Stein was

found with a small aerosol can of mace, a tear-gas-like substance, in her purse.in New York, this

substance is legal, and consequently, she was not charged with any offense in connection with

possession of the substance. She did not remove or use the tear-gas-like substance during the

fight with Ms. Jeanette. Both women were unaware that the other was armed.

C. Discussion and Analysis

As a result to Ms. Jeanette Sumter, the prosecutor’s office is deciding whether to bring a charge

of assault in the second degree against Ms. Ruth Stein based upon a fight incident between the

two. Ms. Sumter contends that she was assaulted by Ms. Stein on the day of the said incident

and she has filed a complaint. The issue in this case is whether it can be proven beyond a

reasonable doubt that Ms. Stein assaulted Ms. Sumter, given the facts provide, and that she is

guilty of the offense. A court would likely conclude that given the facts provided, there is not

enough witness accounts to show that Ms. Stein initiated the fight or assaulted Ms. Sumter

Therefore, there isn’t enough facts to charge Ms. Stein with assault in the second degree.

In order to sustain an assault charge, the following must be proven

 I. That the person intentionally causes physical injury with a deadly weapon or

dangerous instrument.

II. The person recklessly causes physical injury with a deadly weapon or dangerous

instrument.

In New York, under the Penal Law, assault is a criminal offense involving intentional or the

reckless cause of physical injury to another person. Assault in the second degree requires

intention to injure another person with a dangerous weapon. In this case, Ms. Stein was carrying

an aerosol can mace, which is a legal substance under the Exemption of Weapons Law in the

Penal Law of New York. The possession of the aerosol can mace is defined in the Penal Law as

for protection purposes or his/her property and the using of such an instrument in a situation that

would call for physical force. The exemption in the law only applies to individuals above the age

of eighteen years, a person who has not been convicted in the state or has not been convicted in

a another state of a crime if committed in New York would be categorized as a crime or felony.

Since there is no evidence to show that Ms. Stein has committed a crime in New York or any

other state outside of New York and she is above eighteen as she was in a bar drinking at the

moment of the incident, she was legally in possession of the aerosol mace can.

The victim has to have experienced physical injury, which would be defined as the impairment

of physical condition or inducement of substantial pain. These injuries require hospitalization of

the victim. Therefore, in this case, evidence must show that the victim sustained a serious

physical injury. There is no evidence to show that Ms. Sumter was physically injured, no

hospitalization reports have been brought forward by the complainant to show evidence of

physical harm. Further, Ms. Stein did not use the aerosol can mace on the complainant during the

fight.
In People v. Sohn, 43 A.D.2d 716, an appeal by a defendant from a judgment of the Supreme

Court, Queens County convicting the appellant of assault in second degree. Judgment was

reversed based on the facts and law. The evidence did not establish beyond a reasonable doubt

that the defendant was guilty as the testimony as to how the incident began was equivocal and

could not be used to conclude that the appellant had been the initiator of the incident. The court

further found that the defendant and his fellow defendants were not the guilty as they called the

police and remained in the scene of the incident, the appellant was in possession of a firearm

when the incident happened and pleaded guilty on the matter of possessing a dangerous weapon.

This shows that the people were not able to prove beyond a reasonable doubt that the defendant

was guilty.

The defendant, Ms. Stein, from the findings, stayed within the vicinity of the scene of the

incident, she returned to the bar in which they were fighting outside, she was also the one that

pointed out the complainant who was several blocks away from the scene of incident. Therefore,

there wasn’t any intention on the part Ms. Stein to flee the scene.

The defendant in this case, Ms. Stein, might argue that there isn’t sufficient evidence to show

that she initiated the fight, during the incident there were no witnesses to see how the fight began

and there are no witness accounts to show that the defendant started the fight or used a weapon

or instrument to injure the complainant during the incident, this coupled by the lack of evidence

to show that the complainant was injured during the incident will provide Ms. Stein with a valid

defense to the assault charges in the second degree. The police did not arrest Ms. Stein on any

allegation, yet they arrested the complainant on the charges of carrying a deadly weapon on her

person. She might also argue that in her possession she had a legal self-defense instrument under
the New York State Penal Law, while the complainant had in her possession a hand gun to which

she was charged with possession of a deadly weapon.

D. Conclusion

For the reasons stated above, it will be difficult to establish the first and second elements of

assault in the second degree in the case against Ms. Stein. The lack of evidence makes it hard to

prove the case beyond a reasonable doubt. The defendant will argue that there are no grounds to

charge her with assault. The court will most probably find that the complainant has failed to state

how she was assaulted without proof of injury or a medical report to show she sustained any

physical harm to her person.

E. Recommendation

It is recommended that the complainant provide a medical report that could show she was

physically harmed or injured during the incident with Ms. Stein. Further proof is also needed to

show that Ms. Stein initiated the fight and was intended on causing physical harm to the

complainant.

F. Appendix

I. People v. Sohn

Request by litigant from a judgment of the Supreme Court, Queens County, rendered February

14, 1973, indicting for strike in the second degree, after a nonjury trial, and condemning him to

probation for a long time. Judgment switched, on the law and the certainties and as an issue of
tact in light of a legitimate concern for equity, and prosecution expelled. In our view the proof

neglected to build up blame past a sensible uncertainty. The declaration with respect to how the

occurrence started was to a great degree obscure and it can't be closed past a sensible uncertainty

that appealing party was the assailant. A finding that litigant and his codefendants were the

aggressors is conflicting with the way that they called the police and stayed on the scene until

their entry. This, combined with the way that the complainant conceded to ownership of a gun

amid the occurrence, demonstrates that the People neglected to meet their weight of

demonstrating blame past a sensible uncertainty. Latham, Acting P.J., Shapiro, Gulotta, Christ

and Benjamin, JJ., agree.

II. Exemption of Weapons Law, New York State.

14. Ownership as per the arrangements of this section of a self-preservation splash gadget as

characterized thus for the security of a man or property and utilization of such self-protection

gadget under conditions which would legitimize the utilization of physical power according to

article thirty-five of this part.

(a) As utilized as a part of this area self- defense spray might mean a pocket estimated splash

gadget which contains and discharges a compound or natural substance which is expected to

create impermanent physical uneasiness or inability through being vaporized or generally

administered noticeable all around or any like gadget containing pepper or comparative

incapacitating substance.

(b) The exclusion under this section should not make a difference to a person who:

1. Is under eighteen years old; or

2. Has been beforehand indicted in this condition of a lawful offense or any ambush; or
3. Has been sentenced a wrongdoing outside the territory of New York which if carried out

in New York would constitute a lawful offense or any attack wrongdoing."