People v. Rypinski

157 A.D.2d 260 (1990)

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Nature of the Case

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Facts

D, who had been drinking all evening, shot Gordon Ulrich above the left knee after an argument concerning D's girlfriend. Witnesses testified that, before D got a rifle from his car, he threatened to blow the victim's brains out. They also testified that, after the gun was discharged, D said 'I'm sorry, it was an accident. I didn't mean to hurt anybody.' D said that he intended to take the gun to a shooting range and had cleaned the rifle the day before, that he always kept three rounds of ammunition in the rifle (one in the chamber and two in the clip), and that he had removed and replaced the three rounds while cleaning the gun. He said he had thrown it in the back seat of his car because he was having trouble opening his trunk. D testified that he was drunk and that, when he knew there would be trouble, he pulled the rifle from the back seat of his car and ejected it three times. He believed that the gun was unloaded. He was hanging on to the car with my left hand and didn't even reach the end of the car and the rifle discharged. D claimed he didn't know how it went off. D then walked over to the person and saw him bleeding. I put my hand on him and I said, 'I'm sorry, it was an accident.' D did not look in the chamber to see whether the gun was unloaded. D theorized that there might have been 4 bullets in the rifle leaving one in the chamber after ejecting three times. D requested the court to charge that the jury could consider whether a mistake of fact negated the culpable mental state required. This was given on the intentional counts but not for the lessor included reckless assault crimes. D was convicted on the lesser included reckless assault crime and appealed.