## Facts

- Robert Schacker was charged by misdemeanor information with assault in the third degree (N.Y. Penal Law § 120.00(1)) arising from conduct during an amateur ice-hockey game at a Suffolk County rink.
- The accusatory instrument alleged that after the whistle had blown and play stopped, Schacker struck Andrew Morenberg from behind on the back of the neck, causing Morenberg’s head to hit the goal crossbar.
- The information alleged Morenberg suffered a concussion and related symptoms and received hospital treatment.
- At a hearing on Schacker’s motion to dismiss in the interest of justice (CPL 170.40), hospital records were introduced showing negative imaging studies and a final diagnosis of “Contusion Forehead.”
- The court treated hockey as a contact sport in which participants accept reasonably foreseeable risks of physical contact and injury.

## Issues

1. Whether, in the context of an amateur hockey game and the assumption-of-risk doctrine, the prosecution could realistically prove the “conscious intent to cause physical injury” required for third-degree assault under N.Y. Penal Law §§ 120.00(1) and 15.05.
2. Whether dismissal of the misdemeanor information was warranted “in the interest of justice” under CPL 170.40 considering the statutory factors, including the circumstances of the conduct, the extent of harm, and the strength of the proof.

## Decision

- The court granted Schacker’s CPL 170.40 motion and dismissed the misdemeanor information in the interest of justice.
- The court found the medical proof reflected minor injury compared to the more serious injuries alleged in the information.
- The court concluded that the sports context and assumed, foreseeable risks of hockey made proof of the required criminal intent doubtful.
- Weighing the CPL 170.40 factors, the court determined that continuing the prosecution would not serve the interests of justice.

## Legal Principles

- Assault in the third degree under N.Y. Penal Law § 120.00(1) requires proof that the defendant intentionally caused “physical injury,” i.e., acted with conscious objective to cause such injury (N.Y. Penal Law § 15.05).
- Participants in athletic competition generally assume the risks of injuries that are known, apparent, and reasonably foreseeable consequences of participation; this context may undermine an inference of criminal intent for game-related contact.
- Under CPL 170.40, a court may dismiss a misdemeanor accusatory instrument in furtherance of justice after considering factors including the seriousness and circumstances of the offense, the extent of harm, the strength of the evidence, and the purpose and effect of imposing a criminal conviction.

## Conclusion

The court dismissed a third-degree assault prosecution arising from an on-ice incident, reasoning that the complainant’s objectively documented injuries were minor and that, given the assumed risks of hockey, the People faced substantial difficulty proving the specific intent required for criminal assault; on balance, an interest-of-justice dismissal under CPL 170.40 was warranted.


People v. Schacker, 670 N.Y.S.2d 308 (N.Y. Dist. Ct. 1998)