        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

435
KA 10-01815
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN M. SKINNER, II, DEFENDANT-APPELLANT.


MULDOON & GETZ, ROCHESTER (GARY MULDOON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered August 24, 2010. The judgment
convicted defendant, upon a jury verdict, of assault in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the conviction of assault
in the second degree (Penal Law § 120.05 [7]) to assault in the third
degree (§ 120.00 [1]) and vacating the sentence and as modified the
judgment is affirmed, and the matter is remitted to Supreme Court,
Monroe County, for sentencing on the conviction of assault in the
third degree and for proceedings pursuant to CPL 460.50 (5).

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of assault in the second degree (Penal Law §
120.05 [7]) based on an incident in which he injured an employee of
Industry Secure Facility (Industry), where defendant had been serving
a sentence imposed upon him as a juvenile offender. A person violates
section 120.05 (7) when, “[h]aving been charged with or convicted of a
crime and while confined in a correctional facility, as defined in
[Correction Law § 40 (3)], pursuant to such charge or conviction, with
intent to cause physical injury to another person, he causes such
injury to such person or to a third person” (emphasis added).
Defendant contends that his conviction should be reduced to the lesser
included offense of assault in the third degree (Penal Law § 120.00
[1]) because the evidence at trial is legally insufficient to
establish that Industry is a correctional facility within the meaning
of Correction Law § 40 (former [3]). Industry is operated by the
Office of Children and Family Services, formerly known as the State
Division for Youth. The People concede that the conviction should be
reduced to assault in the third degree but on a different ground than
that advanced by defendant. According to the People, the verdict is
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                                                         KA 10-01815

against the weight of the evidence in light of the definition of a
correctional facility given to the jury by Supreme Court in its final
instructions, which did not include “a secure facility operated by the
state division for youth” (§ 40 [former (3)]). Because we agree with
defendant that the evidence is legally insufficient to support the
conviction of felony assault, we need not address the People’s
alternative ground for modification.

     Pursuant to Penal Law § 120.05 (7), conduct that would otherwise
constitute a misdemeanor assault constitutes a class D felony assault
when the conduct occurs within a correctional facility as defined in
Correction Law § 40 (3). The version of Correction Law § 40 (3) in
effect at the time of the incident in question defined a correctional
facility as “any institution operated by the state department of
correctional services, any local correctional facility, or any place
used, pursuant to a contract with the state or a municipality, for the
detention of persons charged with or convicted of a crime, or, for the
purpose of this article only, a secure facility operated by the state
division for youth” (emphasis added). A local correctional facility
is defined as “any county jail, county penitentiary, county lockup,
city jail, police station jail, town or village jail or lockup, court
detention pen or hospital prison ward” (§ 40 [2]).

     The indictment charged defendant with one count of assault in the
second degree pursuant to Penal Law § 120.05 (7). Prior to trial,
defendant moved to reduce the charge to assault in the third degree,
contending that Industry was not a correctional facility within the
meaning of Correction Law § 40 (former [3]). Defendant argued that,
although the definition of correctional facility set forth in section
40 (former [3]) included “a secure facility operated by the state
division for youth,” the statute specifically stated that the
definition in that regard was for the purpose of that “article only,”
i.e., article 3 of the Correction Law. Defendant therefore concluded
that the definition of a correctional facility that includes secure
facilities operated by the state division for youth did not apply to
Penal Law § 120.05 (7). The court denied the motion and determined,
inter alia, that the Legislature intended to include juvenile
detention facilities such as Industry within the ambit of section
120.05 (7).

     The case therefore proceeded to trial on the indictment. At the
close of the People’s proof, defendant moved for a trial order of
dismissal on the ground that the evidence is legally insufficient to
establish that Industry was a correctional facility. The court
initially reserved decision on the motion but denied it after the jury
rendered a guilty verdict. Defendant then moved to set aside the
verdict prior to sentencing, again contending that the People failed
to establish that Industry was a correctional facility within the
meaning of Correction Law § 40 (former [3]). The court denied the
motion and sentenced defendant to a term of imprisonment. This appeal
ensued.

     We agree with defendant that Industry does not constitute a
correctional facility within the meaning of Correction Law § 40
                                 -3-                           435
                                                         KA 10-01815

(former [3]) and that the evidence therefore is legally insufficient
to establish that he violated Penal Law § 120.05 (7). “It is a
long-settled proposition that, in determining the Legislature’s intent
in enacting a statute, a court should interpret the statute in a
manner that is most consistent with the plain language of the statute”
(People v Hill, 82 AD3d 77, 79; see generally People v Kisina, 14 NY3d
153, 158). Here, the plain language of Correction Law § 40 (former
[3]) supports defendant’s interpretation that the reference to “a
secure facility operated by the state division for youth” in the
statute’s definition of a correctional facility applies only to
article 3 of the Correction Law and not to Penal Law § 120.05 (7).
Because “ ‘the clearest indicator of legislative intent is the
statutory text’ ” (Hill, 82 AD3d at 79, quoting Majewski v Broadalbin-
Perth Cent. School Dist., 91 NY2d 577, 583), and the text of
Correction Law § 40 (former [3]) is clear and unambiguous with respect
to the matter in question, we need not explore the legislative history
behind that statute or Penal Law § 120.05 (7) in an attempt to discern
a contrary intent.

     In any event, we do not agree with the court’s determination that
the Legislature intended for Penal Law § 120.05 (7) to apply to
assaults committed in juvenile facilities. It is true, as the court
pointed out, that the legislation enacting section 120.05 (7) was
entitled, “An Act to amend the penal law, in relation to mandatory
consecutive terms of imprisonment for persons convicted of assault
upon a guard, employee, or inmate of a correction institution or
juvenile detention facility” (L 1981, ch 372 [emphasis added]).
Indeed, the original version of the proposed statute applied not just
to correctional institutions and juvenile detention facilities, but
also to facilities within the “reformatory system” (1981 NY Assembly
Bill A6725). During the legislative process, however, amendments were
made and the references to juvenile detention facilities were omitted
from the substantive provisions of the bill (see 1981 NY Assembly
Journal, 1155, 1259, 1442; 1981 NY Senate Journal, 553-554, 578).
Thus, the bill that ultimately passed the Legislature applied only to
correctional facilities as defined in Correction Law § 40 (former
[3]). Inasmuch as the Legislature considered the option of applying
Penal Law § 120.05 (7) to assaults committed in juvenile facilities
but ultimately passed an amended version of the bill not containing
such language, we conclude that the Legislature expressed its intent
that section 120.05 (7) would not apply to juvenile facilities.

     Defendant’s interpretation of Penal Law § 120.05 (7) is also
supported by a comparison to article 205 of the Penal Law, which
defines the various crimes of escape and other crimes relating to
custody. A person is guilty of escape in the second degree when he or
she, inter alia, “escapes from a detention facility” (§ 205.10 [1])
or, “[h]aving been arrested for, charged with or convicted of a class
C, class D or class E felony, he [or she] escapes from custody” (§
205.10 [2]). If a person has been charged with or convicted of a
felony and escapes from a detention facility, or if he or she has been
arrested for, charged with or convicted of a class A or class B felony
and escapes from custody, that person is guilty of escape in the first
degree (§ 205.15 [1], [2]). Notably, a “[d]etention [f]acility” is
                                 -4-                           435
                                                         KA 10-01815

defined in article 205 as “any place used for the confinement,
pursuant to an order of a court, of a person (a) charged with or
convicted of an offense, or (b) charged with being or adjudicated a
youthful offender, person in need of supervision or juvenile
delinquent, or (c) held for extradition or as a material witness, or
(d) otherwise confined pursuant to an order of a court” (§ 205.00
[1]).

     It is therefore evident that the definition of a “detention
facility” for purposes of escape is far broader than that of a
“correctional facility” in Correction Law § 40 (3), and that
definition of a detention facility would clearly include Industry
within its ambit. It stands to reason that, if the Legislature, in
enacting Penal Law § 120.05 (7), had intended to make it a felony to
commit misdemeanor assault in a youth facility such as Industry, it
could easily have done so by using language similar to that contained
in article 205 with respect to escape crimes. We thus conclude that,
for the purpose of Penal Law § 120.05 (7), Industry is not a
correctional facility within the meaning of Correction Law § 40 (3),
and that the evidence at trial therefore is legally insufficient to
establish a necessary element of the crime charged. We need not
address defendant’s remaining contentions because, even in the event
that they were meritorious, they would not result in dismissal of the
indictment. We therefore modify the judgment by reducing the
conviction of assault in the second degree to assault in the third
degree and vacating the sentence, and we remit the matter to Supreme
Court for sentencing on the conviction of assault in the third degree.




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
