Question Presented

Under New York’s Penal Law § 10.00, does Fred Johnson’s prosthetic arm constitute as a

“dangerous instrument” as a matter of law, when Johnson’s prosthetic arm allegedly broke Mr.

Gerard’s cheek bone, causing nerve damage in his cheek, and gave Mr. Kimble muscle bruises

on his neck?

Brief Answer(s)

No, since Mr. Johnson’s prosthetic arm is jointed at the elbow, wrist, and fingers and is

considered a body part under New York’s Penal Law § 10.00, his prosthetic arm cannot be

considered as a “dangerous instrument.”

Roadmap Paragraph

Fred Johnson has been wrongly accused of assaulting Richard Kimble and Philip Gerard in the

second degree using his prosthetic arm. Johnson’s arm cannot be a “dangerous instrument” as a

matter of law. Penal Law § 10.00 defines “dangerous instrument” as “any instrument, article, or

substance … under which circumstances in which it is used … is readily capable of causing

death or other physical injury” N.Y. Penal Law § 10.00 (McKinney 2008). When Johnson

allegedly punched Mr. Gerard in the face, the prosthetic arm became loss from the straps that

secure it to the shoulder. An arm that becomes loose from the shoulder from one punch cannot

be capable of causing death or other physical injury. Additionally, Mr. Kimble alleges that

Johnson swung the prosthetic arm at Mr. Kimble with his natural hand, causing muscle bruises

but no injury. Again, an arm that is not capable of causing anything more than simple bruises

does not fit under § 10.00’s definition of “dangerous instrument”. Generally, New York courts

have established that an individual’s body part does not constitute as a “dangerous instrument”

under the statute. People v. Vollmer, 299. N.Y. 347, 87 N.E.2d 291 (1949); People v. Azor, 177
Misc.2d 427, 678 N.Y.S.2d 238 (1998); People v. Owusu, 93 N.Y.2d 398, 712 N.E.2d 1228, 690

N.Y.S.2d 863 (1999). Johnson’s arm is made of an elastic silicon exterior, covering a solid

titanium internal frame, and is jointed at the elbow, wrist, and fingers. Therefore, although

prosthetic, his arm is still considered a body part. The arm does not qualify as a “dangerous

instrument.” Using the use-oriented approach, the court should dismiss the indictments for

Assault in the Second Degree on the ground that Johnson’s arm does not constitute as a

“dangerous instrument.”