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People v. Lynn

The People of the State of New York v. Baron Lynn

People v. Lynn, 115 Misc. 2d 76 (1982)
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Court
Appellate Terms of the Supreme Court of New York · State Appellate Courts
Decided
July 7, 1982
Citations
115 Misc. 2d 76454 N.Y.S.2d 5851982 N.Y. Misc. LEXIS 3632
Cited by 11

Opinion of the Court

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OPINION OF THE COURT

Memorandum.

Judgment of conviction unanimously reversed, on the law, and complaint dismissed.

According to the indorsements on the court papers, on the People’s motion and with the defendant’s consent, the charges against defendant were reduced from jostling to attempted jostling and from resisting arrest to attempted resisting arrest and the matter was transferred from a jury to a nonjury part for trial. A nonjury trial was held at the close of which defendant moved to dismiss the attempted jostling charge on the ground that there is no such crime. The motion was denied and defendant was convicted of attempted jostling but acquitted of attempted resisting arrest.

On this appeal, defendant renews his contention that there is no such crime as attempted jostling. We agree. Jostling itself is an inchoate theft offense, aimed at the pickpocket who surreptitiously attempts to secure the personal property of his victim. It is in the nature of an *77 attempt (see People v Thomas, 36 NY2d 514, 517 ; People v Rivera, 105 Misc 2d 285 ; Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 165.25, pp 236-237). As such, there can be no such crime as attempted jostling. “[TJhere cannot be an attempt to commit a crime which is itself a mere attempt to do an act or accomplish a result” (People v Schmidt, 76 Misc 2d 976, 978; see 22 CJS, Criminal Law, § 74). Since a defendant cannot be convicted after trial of a nonexistent crime (see, e.g., People v Foster, 19 NY2d 150 ; People v Brown, 21 AD2d 738 ; People v Hassin, 48 AD2d 705 ), the charge must be dismissed.

Buschmann, J. P., Hirsch and Kunzeman, JJ., concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 11 cases

View all citing references →
1983: 11985: 11988: 11990: 11992: 11997: 11998: 12000: 12003: 12007: 219832026peak 2007 · 2

Relies on it most ⓘ

  1. People v. Carrabotta2 Misc. 3d 685 (N.Y. City Crim. Ct. 2003)
  2. People v. Williams120 Misc. 2d 68 (N.Y. City Crim. Ct. 1983)
  3. People v. Diaz146 Misc. 2d 260 (N.Y. City Crim. Ct. 1990)
  4. People v. Pao Fun16 Misc. 3d 917 (N.Y. City Crim. Ct. 2007)
  5. People v. Campbell532 N.E.2d 86 (N.Y. 1988)
  6. People v. Lupinos176 Misc. 2d 852 (N.Y. City Crim. Ct. 1998)

Most recent

  1. People v. Pao Fun16 Misc. 3d 917 (N.Y. City Crim. Ct. 2007)
  2. People v. Pignatello15 Misc. 3d 833 (N.Y. Sup. Ct. 2007)
  3. People v. Carrabotta2 Misc. 3d 685 (N.Y. City Crim. Ct. 2003)
  4. People v. Vega185 Misc. 2d 73 (N.Y. City Crim. Ct. 2000)
  5. People v. Lupinos176 Misc. 2d 852 (N.Y. City Crim. Ct. 1998)
  6. People v. Gabbidon172 Misc. 2d 226 (N.Y. Sup. Ct. 1997)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 6

DepthCaseCited by
People v. Foster, 225 N.E.2d 200 (N.Y. 1967) 108
People v. Brown, 21 A.D.2d 738 (1964) 30
People v. Hassin, 48 A.D.2d 705 (1975) 22
People v. Schmidt, 76 Misc. 2d 976 (N.Y. City Crim. Ct. 1974) 18
People v. Thomas, 330 N.E.2d 609 (N.Y. 1975) 8
People v. Rivera, 105 Misc. 2d 285 (N.Y. City Crim. Ct. 1980) 4

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