People v. Owusu, 1999 N.Y. Int. 0080 (May 13, 1999).




Whether an individual's teeth constitute a dangerous instrument in crimes for which the degree of culpability is enhanced by the use or threatened use of a dangerous instrument.


No. The Court interpreted Penal Law § 10.00(13) as excluding a person's hand, arm, teeth, elbow, or other body part from those objects considered "instruments" under the Penal Law.


In a thirteen count indictment, Maxwell Owusu was charged with burglary in the first degree after forcing himself into his estranged wife's apartment and becoming involved in a fight with another man. During the fight, the defendant bit the man's finger so severely that the nerves were severed. Four counts of the indictment contained the aggravating factor that the defendant, in biting the man's finger, used or threatened to use a dangerous instrument.

The Kings County Supreme Court dismissed three and reduced one of the counts against the defendant, holding that a person's teeth could not constitute a dangerous instrument. The Appellate Division, Second Division, then employed a "use-oriented" approach to determine that teeth could constitute a dangerous instrument and reversed the Supreme Court ruling. Here, the Court of Appeals reversed the Appellate Division and reinstated the Supreme Court ruling, holding that an individual's body parts do not constitute instruments under the Penal Law § 10.00(13).

Writing for the Majority, Judge Wesley noted that under the plain meaning of the words of the statute, one's hands, teeth, and other body parts are not generally considered to be "instruments" in common parlance.

Wesley further noted that neither the Legislature nor the courts have considered body parts as instruments or weapons. For the legislative history of the statute, Wesley relied upon the 1937 and 1964 Penal Law Revision Commission Reports, neither of which included a body part as a dangerous weapon or instrument. The 1937 Law Revision Commission report clarified the outer parameters of the Legislature's instrument definition: a fatal shooting is a killing with a dangerous instrument as a matter of law, while a killing with bare fists cannot be said to be effecting death with a dangerous weapon. The 1964 Law Revision Commission report further indicated that the Legislature intended the dangerous instruments concept to be limited to external objects like knives, crowbars, firearms and metal knuckles.

Looking to the Court's own jurisprudence, Wesley pointed out that "in every case where [the Court] has been called on to decide whether something is a dangerous instrument, the focus has been on an object." While innocuous objects capable of causing injury have been considered dangerous instruments under § 10.00(13) on a case-by-case basis, that approach has not extended to body parts.


Writing for the dissent, Judge Bellacosa charged that the Majority's per se rejection of body parts as dangerous instruments unnecessarily restricted the inclusive case-by-case fact-intensive inquiry envisioned by the Legislature in the 1964 recodification. The dissent pointed to the plain language of the statute and prior cases in the Court to conclude that the language of § 10.00(13) should instead be read expansively, allowing for a jury to consider, on a case-by-case basis, whether a particular body part should be considered a dangerous instrument.