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Little-Known Law Considers 'One-Punch Homicides' a Misdemeanor, DA Says

By Ewa Kern-Jedrychowska | November 15, 2016 5:24pm

QUEENS — The man who police said fatally punched a 64-year-old man for bumping his wife on a bus in Queens has not been charged with homicide, because of New York State law, prosecutors said.

Mathew Smith, 42, was caught on surveillance video hitting Patrick Gorman, 64, on the corner of Main Street and Queens Boulevard in Briarwood on June 26, according to police and the Queens District Attorney's Office. 

Gorman is then seen struggling to get up, while Smith and his wife, Elena Makarova, 39, slowly walk away. Gorman later suffered a stroke and concussion, died several hours later at Jamaica Hospital, court papers indicated. 

(Credit: NYPD)

Smith turned himself in to police on Nov. 7 and was initially charged with criminally negligent homicide and assault with intent to cause physical injury, the NYPD said.

However, under current New York State law a so called “one-punch homicide” is classified as an assault in the third degree — a misdemeanor offense, prosecutors said, and the criminally negligent homicide charge was dropped.

“Prosecutors are not bound to file the criminal charges that the police may charge when they make an arrest,” said Kevin Ryan, a spokesman for the Queens District Attorney’s office.

Ryan also said that prosecutors were unable to bring felony-level charges against Smith because “under the present state of the law the criminal charges that Smith faced were limited.

"An attack like this, which is colloquially known as one-punch homicide, in most instances there is no proof of any villainous intent, so at most we can only charge assault in the third degree misdemeanor, which requires only the intent to cause physical injury.”

In March, the New York State Senate passed “Ildefonso Romero, Jr.'s Law,” which would create a new felony charge for an aggravated assault that results in serious injury or death, carrying a maximum prison term of four years.

But the bill named after the 58-year-old Good Samaritan who was fatally punched in the head by a 17-year-old while trying to break up a fight in front of his Bronx home, failed to pass the Assembly.

“No family should ever go through the grief of losing a loved one and then watching his killer get a slap on the wrist,” State Sen. Jeff Klein, who sponsored the bill, said after it passed the Senate.

According to published reports, in 2014, Romero’s assailant was sentenced to five months in jail.

Klein is planning to bring the bill up for consideration again in the next session, his office said.

Smith, who is being held on $10,000 bail, is due back in court on Nov. 22, according to court records. If convicted of assault, he could spend less than one year behind bars.