Section 382(b) of the Penal Law states that:
"A person who commits an offense under section 379 against a member of his family shall be sentenced to double the penalty prescribed for the offense; For the purposes of this section, "a member of his family" – including a person who was a member of his family in the past, and he is one of the following:
(1) his spouse, including the common-law spouse as his spouse;
(2) A minor or helpless person, for whom the offense is committed, is responsible, as defined as "responsible for a minor or helpless" in section 368A."
- I will not elaborate on this matter, since it seems that there can be no dispute that the acts described in sections 3.2, 3.4 and 3.5 (throwing cutlery and harming minor F), 4.3, 4.4 (slapping C, as a matter of routine), 4.6, and 4.8 of the indictment, which I determined were committed by the defendant, meet the definition of the offense of assault under section 382(b) of the Penal Law. Choking, slapping, and throwing objects are all "beating" or "exerting force on the body in some other way." It was not argued before me that the acts were committed randomly or inadvertently and the distraction, and no other argument was raised as to the offense charges attributed to the defendant for the said acts.
As for the incident of throwing the fish plate at the complainant (section 3.5 of the indictment), according to all the testimonies that were brought before me, the defendant did indeed throw the plate, but it did not harm the complainant (or any other person), and therefore the defendant should not be convicted of the perfect offense of assault under aggravated circumstances, but of an attempted offense.
As for the incident of throwing cutlery at the complainant, who harmed minor F, I will clarify, for the avoidance of doubt, that the injury to another person from the original plan does not affect the sophistication of the elements of the offense [and see in this context section 20(c)(2) of the Penal Law].
Additional Arguments – Delay:
- There is substance to the defense's argument that the investigation of this case was extended over a long period of time. The complainant went to the police and complained for the first time at the beginning of November 2015. In February 2018, the defendant was interrogated by the police for a final interrogation, and thus the investigation was completed. The indictment was filed on September 12, 2018.
I did not find in the accuser's arguments convincing explanations for the delays in completing the investigation in this case. Still, this is not an extreme and unusual delay, which can affect the question of the defendant's conviction. As I noted above – the cases in which the passage of significant time has an impact on the question of conviction – are exceptional cases, in which not only is the delay significant, but also, and above all, the harm to the defendant's defense is tangible and real. I will mention that in our case, the defendant chose a line of defense that is entirely a sweeping denial of the acts described in the indictment. It was not claimed before me, not even in a hint, that the defendant did not remember the events described in the indictment or that his defense was impaired in any other concrete way, because of the time that had elapsed since the complainant's complaint was first filed with the police. Therefore, and insofar as the defense's argument is for "acquittal for reasons of delay", the claim should be rejected.