Supreme Court, New York County, September 26, 2018

Reginald Sharpe III for Fernando Sandel, defendant.

David Ferguson for Isaias Rivera, defendant.

Glenn Hardy for Joey Cruz, defendant.

Cyrus R. Vance, Jr., District Attorney (Carolina Holderness and Justin McNabney of counsel), for plaintiff.

The defendants, Fernando Sandel, Isaias Rivera and Joey Cruz were convicted after a jury trial of multiple counts of predatory sexual assault in connection with attacks on three women. They filed CPL 330.30 (1) motions to set aside the verdict. Previously, at the close of the evidence the defendants sought a trial order of dismissal. Decision was reserved on whether to dismiss those counts involving the defendants' use of a noxious chemical spray to subdue their victims, counsel having argued it failed to constitute a dangerous instrument under the law. For the reasons stated below, the motions are denied.

On June 28, 2015, defendants Sandel and Cruz sexually attacked a woman on the rooftop of a building in the Bronx. On August 3, 2015, all three defendants attacked a second woman in a room at the Grand Hyatt Hotel on East 42nd Street in Manhattan. The next day they perpetrated a similar offense against a woman in her apartment on Lexington Avenue, also in Manhattan. In each of the cases, the defendants and their victims had arranged to meet. The women believed they would be engaging in consensual sex for money, but the men intended to sexually assault and rob them. To facilitate this intent, the defendants sprayed their victims in the face with a noxious chemical, most likely mace or pepper spray, tied their wrists and ankles and beat them.

A police investigation led to the defendants' arrests. Mr. Rivera and Mr. Sandel were arraigned in Supreme Court, New York County, on September 30, 2015. Defendant Cruz was arraigned the next day. Defendants Sandel and Cruz were each charged in a 45-count indictment with predatory sexual assault, forcible rape and other sex-related acts, robbery, strangulation, unlawful imprisonment, burglary and conspiracy.^[FN1] Defendant Rivera faced 35 counts, having not participated in the Bronx crimes. All were remanded for trial.{**61 Misc 3d at 845}

Jury selection began on April 11, 2018.^[FN2] The People's case commenced on May 2, 2018, and concluded on June 4 at which time the defendants made a motion for a trial order of dismissal. The motion was denied except that counts 8 and 10 were dismissed as to defendants [*2]Sandel and Cruz (sexual abuse in the third degree and unlawful imprisonment) and count 43 was dismissed as to all three (unlawful imprisonment). The court reserved as to those counts relating to the use of a noxious chemical during the attack.

Following the court's decision to reserve, the matter proceeded to summations. The remaining counts were given to the jury and on June 8, 2018, the defendants were found guilty of all charges.

CPL 290.10, 330.10

At the end of either the People's case or after all the evidence has been presented, a judge, upon motion of the defendant, may issue a trial order of dismissal of any count of an indictment because the evidence admitted at trial is not legally sufficient to establish the offense charged or any lesser included offense. The court also may reserve decision until after the jury renders its verdict. (CPL 290.10 [1].)

At any time after the verdict of guilty and before sentence, a defendant may move to set aside or modify the verdict if there is any ground in the record that if raised on appeal would require reversal or modification of the judgment "as a matter of law by an appellate court." (CPL 330.30 [1].) A trial judge's powers pursuant to section 330.30 (1) are "limited to a determination that the trial evidence was not 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" of it. (CPL 70.10 [1].) The standard to determine legal sufficiency is whether, "after viewing the evidence in a light most favorable to the prosecution, any{**61 Misc 3d at 846} rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v Carthrens, 171 AD2d 387, 392 [1st Dept 1991].)

The defendants' legal argument focuses on the 12 counts (1, 2, 5, 15, 16, 17, 18, 24, 25, 31, 36 and 38) involving the use by the defendants (Cruz and Sandel in counts 1, 2 and 5 and all three defendants in the rest) of a noxious chemical spray to subdue their victims for the purpose of engaging in predatory sexual assault, burglary and robbery. They assert the chemical spray is not a "dangerous instrument" under New York law.

Dangerous Instrument

The legal definition of a "dangerous instrument" is "any instrument, article or substance . . . 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." (Penal Law § 10.00 [13] [emphasis supplied].) Serious physical injury is defined as "injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." (Penal Law § 10.00 [10].) The focus of the statute is not on whether an instrument, article or substance is dangerous per se but whether the manner of use transforms the item into something that can cause death or serious physical injury.

It is obvious that some items are inherently dangerous and capable of causing serious physical injury if improperly used: an automobile (People v Diaz, 129 AD2d 968 [4th Dept 1987]); a lead pipe (People v Jones, 196 AD2d 889 [2d Dept 1993], lv denied 82 NY2d 897 [1993]); a pistol (People v Gamble, 135 AD3d 1078 [3d Dept 2016], lv denied 27 NY3d 997 [2016]); a red-hot barbecue fork (People v Greene, 72 AD3d 1279 [3d Dept 2010], lv denied 15 NY3d 750 [2010]); a baseball bat (People v Johnson, 63 AD3d 470 [1st Dept 2009], lv denied 13 NY3d 745 [2009]); a bicycle chain (People v Hiraeta, 117 AD3d 964 [2d Dept 2014], lv denied 24 NY3d 1002 [2014]); and steel-toed boots (People v Roblee, 70 AD3d 225 [3d Dept 2009]).

But less obviously, benign objects can be "dangerous instruments," capable of causing the requisite injuries under the right circumstances. Examples abound: a plaster arm cast (People v Davis, 96 AD2d 680 [3d Dept 1983]); a kitchen fork (Matter of Monos v Monos, 123 AD3d 931 [2d Dept 2014]); a knife handle (People v Burns, 122 AD3d 1435 [4th Dept 2014],{**61 Misc 3d at 847} lv denied 26 NY3d 927 [2015]); a frayed electrical cord (People v Woodard, 83 AD3d 1440 [4th Dept 2011], lv denied 17 NY3d 803 [2011]); a door (People v Parker, 62 AD3d 1195 [3d Dept 2009], lv denied 13 NY3d 704 [2009]); a piece of cloth (People v Marshall, 105 AD2d 849 [2d Dept 1984]); hot water (People v Mableton, 17 AD3d 383 [2d Dept 2005], lv denied 4 NY3d 888 [2005]); sneakers (People v Lappard, 215 AD2d 245 [1st Dept 1995], lv denied 86 NY2d 737 [1995]); and a pit bull terrier (People v Mateo, 77 AD3d 1374 [4th Dept 2010], lv denied 15 NY3d 922 [2010]).^[FN3]

A can of mace, pepper spray or any other noxious chemical is something of a hybrid. The defense argues that such a spray is sanctioned as a nonlethal weapon for law enforcement and sold commercially for use by civilians for self-defense, which signals it cannot be classified as a dangerous instrument. Moreover, the defendants contend that the way the noxious chemical was used here, it did not cause serious physical injury, was not capable of causing such injury and no rational jury could have determined otherwise. The People counter that the way the noxious chemical substance was used here turned it into a dangerous instrument, much the way the handle of a knife or a pair of sneakers became dangerous instruments in the cases cited above. They assert the focus of the statute is not on whether the chemical caused serious physical injury but whether it was used in a way that rendered it capable of doing so.

Noxious Chemical Spray: A Dangerous Instrument

Surprisingly, there appears to be no appellate authority in New York addressing whether a noxious chemical spray—by whatever name it is marketed—constitutes a dangerous instrument. Two New York City criminal courts, however, have found mace to be a dangerous instrument in the context of whether charging it as such could survive a motion to dismiss for facial{**61 Misc 3d at 848} insufficiency. In People v McCullum (184 Misc 2d 70, 73 [2000]), the court held that "[a] cannister of mace has the potential to do serious damage to a person. If the mace cannister is operable, it is a dangerous instrument." However, in McCullum the case was dismissed [*3]because the People failed to establish a prima facie case that the can of mace was operable at the time the defendant was arrested, as required by Penal Law § 265.01 (2). And, in another case where a motion to dismiss a criminal court complaint for facial insufficiency was filed, People v Wilkerson (184 Misc 2d 949, 951-952 [2000]), it was held that allegations that the victim who was sprayed with a noxious material suffered "redness and swelling to the . . . face and burning and swelling to his eyes" was sufficient to plead that the substance was a dangerous instrument.

An Appellate Division case cited by defendant Cruz, People v LaDuca (292 AD2d 851 [4th Dept 2002], lv denied 98 NY2d 652 [2002]), is not on point. In LaDuca, a deputy sheriff doused a resisting suspect with pepper spray and in the ensuing scuffle, the substance got into the sheriff's eyes. As a result, the suspect was charged with assaulting a police officer in violation of Penal Law § 120.05 (3). The question arose whether the deputy sheriff suffered sufficient injuries to support the physical injury element of the charge. The sheriff received a multitude of injuries in his attempt to subdue the defendant, which in tandem with the pepper spray, resulted in the physical injury necessary to sustain the felony assault charge. The statute under which the defendant in LaDuca was charged, designed to create a unique felony crime of assault against a police officer, required only that the prosecutor prove physical injury. Accordingly, there is no holding in that case, or even dicta for that matter, that addresses whether pepper spray either in and of itself or in the manner it was used, could constitute a dangerous instrument capable of causing serious physical injury.

Accordingly, the court must look elsewhere for guidance. In Maryland, "pepper mace" is listed as a dangerous weapon when used "with the intent or purpose of injuring an individual in an unlawful manner." (Md Code Ann, Crim Law § 4-101 [a] [3] [i]; [c] [2].) In a case of first impression in that state, the Maryland Court of Appeals in Handy v State (357 Md 685, 689-690, 745 A2d 1107, 1108-1110 [2000]) determined that whether pepper spray could be a dangerous weapon in a robbery constituted a mixed question of law and fact: whether it is possible for an{**61 Misc 3d at 849} object to be used as a deadly or dangerous weapon and whether its use constituted such was a question of law and, in any given case, whether the facts alleged by the state to support the allegation were proved beyond a reasonable doubt was a question for the jury.

The defendant in Handy, like the defendants here, argued that the pepper spray used against the victim, a postal carrier who was sprayed in the face by the defendant who stole mail from him, could not have been a dangerous weapon because the victim's injuries were not protracted or permanent. But the court ruled: "[W]hen, as a matter of law, an object or substance can be used as a deadly or dangerous weapon, the potential for bodily harm suffices, regardless of the extent of resulting harm in an actual case." (357 Md at 699, 745 A2d at 1114.)^[FN4] The court determined that because the victim testified that he was "blinded by the pepper spray for several hours and experienced a burning sensation in his eyes," the injuries were sufficiently serious to support the jury's findings (357 Md at 700, 745 A2d at 1115).

In Connecticut, the legal definitions of "serious physical injury" and "dangerous instrument" are similar to, but not exactly like, New York's (see Conn Gen Stat § 53a-3 [4], [7]).^[FN5] Thus, in State v Ovechka (292 Conn 533, 543, 975 A2d 1, 7 [2009]), which relied in part on Handy, the Supreme Court of Connecticut held that an assault with pepper spray which temporarily blinded the victim and resulted in irritated, swollen and red eyes that had to be treated in a hospital emergency room, constituted the severity of injury necessary "to support a finding [by the jury] that pepper spray is a dangerous instrument or dangerous weapon."

{**61 Misc 3d at 850}In a case of first impression in California, People v Blake (117 Cal App 4th 543, 554-555, 11 Cal Rptr 3d 678, 686-687 [2004]), an intermediate appellate court was asked to determine whether a serial robber who used pepper spray on several of his victims leaving one "coughing and gasping for air," and another "unable to breathe for so long [it] was 'no joke,' " constituted the use of a dangerous weapon. The court held it was a question of fact for the jury, but that clearly "the victims suffered substantial, though transitory, respiratory distress, burning sensations and blindness." (117 Cal App 4th at 559, 11 Cal Rptr 3d at 690.) The court noted, "it takes little imagination to picture the more serious injuries these victims were fortunate to escape, such as burns, chemical pneumonia, cornea damage or serious asthma attacks." (Id.) The court in Blake outlined the law in California at the time, describing a deadly or dangerous weapon as "an instrument capable of inflicting great bodily injury or death." (117 Cal App 4th at 555, 11 Cal Rptr 3d at 687.) And, it defined "great bodily injury" as "injury which is significant or substantial, not insignificant, trivial or moderate." (117 Cal App 4th at 556, 11 Cal Rptr 3d at 687.)

Pepper spray seems to be a popular choice of weapon in bank robberies, which may explain the many federal court decisions on the subject.^[FN6] In United States v Neill (166 F3d 943 [9th Cir 1999], cert denied 526 US 1153 [1999]), the defendant was convicted following a jury trial on two counts of bank robbery. On appeal, he argued that his sentence had been improperly enhanced for using a dangerous weapon, in his case, pepper spray. The defendant had sprayed a loan secretary at the target bank causing her to "cough and choke and her eyes and nose to burn," which resulted in a severe asthma attack (166 F3d at 949). The victim testified that she felt "like somebody took a match and stuck it up both sides of [her] nostrils . . . it was like I was on fire." (Id.) The court ruled: "Because in this case, pepper spray caused extreme pain and prolonged impairment of a bodily organ, it satisfied the definition of a dangerous weapon." (Id. at 950; see also United States v Bartolotta, 153 F3d 875 [8th Cir 1998], cert denied 525 US 1093 [1999] [bank robber sprayed driver of armored car with mace and his sentence was enhanced because of it; Circuit Court upheld District Court's determination that mace is a dangerous weapon because victim suffered chemical pneumonia]; United States v Dukovich, 11 F3d 140 [11th Cir 1994], cert denied 511{**61 Misc 3d at 851} US 1111 [1994] [Circuit Court upheld finding that tear gas is a dangerous weapon capable of inflicting death or serious bodily injury when sprayed on employees placed on the floor during bank holdup].)

Noxious Chemical Spray: Not a Dangerous Instrument

Courts that have considered this issue have not spoken with one voice. In Austin v State (336 So 2d 480, 481 [Fla Dist Ct App, 3d Dist 1976]) an intermediate appellate court found the evidence did not support a jury verdict of aggravated assault, but only simple assault, where a defendant sprayed a mother in the mouth with mace to wrest her child away from her at the behest of the child's father, who insisted the child was wrongfully being withheld from him. "The evidence that 'mace' would not, under such circumstances, produce death or serious bodily harm was uncontroverted," the court wrote. (Id.)

And, in yet another federal bank robbery case, United States v Harris (44 F3d 1206 [3d Cir 1995], cert denied 514 US 1088 [1995]), the Third Circuit reached the opposite conclusion from the Eighth, Ninth and Eleventh Circuits in holding that a bank robber's sentence should not have been enhanced under the federal sentencing guidelines because he sprayed mace at two tellers. The court looked to the literature provided by the product's manufacturer which stated the spray had been used safely by law enforcement for many years and that its negative effects lasted no longer than 10 or 15 minutes. Moreover, the testimony of an FBI agent about the limited impact the mace had on the tellers supported the manufacturer's claim that it was not unduly dangerous. (44 F3d at 1215-1216.) And, in United States v Lancaster (6 F3d 208 [4th Cir 1993]), the court denied the government's appeal of the District Court's determination that the defendant should not have been given an enhanced sentence for spraying mace into the eyes of a security guard on an armored truck. The court concluded that while the burning in the victim's eyes from the mace "was undoubtedly unpleasant, and could not be described as wholly trivial, it was only momentary and the mace produced no lasting harm." (6 F3d at 210.)

The defendants assert the People did not prove beyond a reasonable doubt that pepper spray is a dangerous instrument because there was no evidence it "causes protracted impairment{**61 Misc 3d at 852} of health." Further, they argue the People failed to provide any expert testimony describing the long-lasting effects of pepper spray on humans or attesting to whether it could cause death or serious physical injury. In fact, the defendants allege, the [*5]only evidence the People did provide showed the opposite: a photo of a label on a can of the noxious substance containing a warning describing it as an "irritant." Additionally, they argue that Penal Law § 265.20 (a) (14) (a) refers to pepper spray as a " 'self-defense spray device' . . . which is intended to produce temporary physical discomfort or disability," thus demonstrating that the New York Legislature recognized this substance was not a dangerous instrument.

The People accuse the defendants of attempting to "bamboozle" the court into thinking that protracted impairment of health is "an essential element" of the charges and that for the defendants' convictions to stand the jury must have found the defendants reached that goal. But, the plain language of the statute requires only that a dangerous instrument be used or threatened to be used in a manner capable of causing that level of injury. And while the testimony of an expert on the question might have been helpful, it was not necessary. The trier of fact could—and did—draw the reasonable inference from the evidence that was presented that the pepper spray was used against the victims in a manner capable of causing serious physical injury.

Some of the federal cases cited by the defendants to support their position do not in that they involve situations where law enforcement or corrections officials relied on pepper spray or mace to control suspects or inmates. (See e.g. Hughes v Judd, 108 F Supp 3d 1167 [MD Fla 2015]; Thomas v Bryant, 614 F3d 1288 [11th Cir 2010].) These cases are not relevant. Law enforcement and corrections officials who spray noxious chemicals in the eyes of resistant suspects or unruly inmates are presumed to have been properly trained. Additionally, courts recognize that police and corrections officials must have within their arsenal tools that are designed to diffuse a dangerous situation without having to resort to guns.

Finally, the defense argument that even the New York Legislature recognizes the benign quality of pepper spray based on what it requires on warning labels is unconvincing. The defense has omitted the rest of the statute in its attempt to convince this court of its position. As per Penal Law § 265.20 (a) (14) (c), a warning label is required for all self-defense{**61 Misc 3d at 853} sprays. It must read: "WARNING: The use of this substance or device for any purpose other than self-defense is a criminal offense under the law. The contents are dangerous—use with care." This label undercuts the defense argument in two ways. First, it demonstrates that the legislature did consider these sprays to be inherently dangerous instruments and second, that it intended to limit their use to emergency situations by persons who would exercise due care. Even stretching one's imagination to the fullest, one cannot envision a situation in which a noxious chemical spray used by a trio of untrained perpetrators against a single terrified, struggling, overpowered, beaten, bound woman held against her will on a roof deck, floor or bed could possibly be considered using "with care."

Without reiterating the testimony in its gory and unpleasant detail, suffice it to say that the first victim, assaulted on a roof at 530 East 138th Street, described being sprayed in the face with a noxious chemical in the close confines of an elevator and then immediately beaten and choked. After having been sprayed in the face, the victim was then punched in her burning eye. Her pain was so great she attempted immediately to flush it out with water. The noxious chemical also burned the inside of her vagina when her rapist shoved his finger, covered with the same chemical, inside her. A treating nurse at the hospital—hours later—documented the [*6]first victim's red, bruised and burning eyes.

The second victim was sprayed in the eyes with a noxious chemical in a small hotel room, crowded with four people, and then pushed on a bed while one of the three defendants—much larger and heavier than she—sat on her chest and bound her hands and ankles, thus preventing her from being able to rub the substance from her eyes. She testified she was in so much pain she was unable to open her eyes for 30 seconds and when she did, they bled. Many hours later, her eyes were so painful an emergency room nurse treated her with an anesthetic. A nurse also made note of these injuries. A week later, the second victim still felt her eyes burning from the spray.

Finally, the third victim was sprayed in the face and nose while being dragged into her apartment by her assailants. Shortly after being sprayed, she was gagged with a T-shirt. She testified that she was unable to breathe and found it difficult to see. The victim remained overnight at the hospital where a doctor rinsed the chemical out of her eyes.

These victims were not standing upright, running away or in an open field when they were sprayed with a noxious chemical.{**61 Misc 3d at 854} One was doused in the close quarters of an elevator, another shortly before a heavy man sat on her chest to tie her up and a third right before a gag was shoved in her mouth. Any of these women could have choked or suffered life-threatening breathing injuries because of the way the defendants used the noxious chemical spray. Viewing the evidence in the light most favorable to the prosecution, as the law requires, a rational trier of fact could have found beyond a reasonable doubt that the defendants' use of a noxious chemical spray constituted the use of a dangerous instrument which was readily capable of causing death or serious physical injury. Accordingly, the defendants' motions pursuant to sections 290.10 and 330.30 are denied and the matter will proceed immediately to sentencing.