People v. Hutchinson

90 A.D.2d 854, 456 N.Y.S.2d 105, 1982 N.Y. App. Div. LEXIS 19124

Opinion

Appeal by defendant from a judgment of the Supreme Court, Richmond County (Barlow, J.), rendered December 4, 1979, convicting him of robbery in the third degree and assault in the third degree, after a nonjury trial, and imposing sentence. Judgment modified, on the law, by reversing the conviction of assault in the third degree, vacating the sentence imposed thereon, and dismissing the count of the indictment upon which said conviction is based. As so modified, judgment affirmed. Defendant was indicted, inter alia, for assault in the second degree pursuant to subdivision 6 of section 120.05 of the Penal Law in that, in the course of and in furtherance of the attempted commission of a robbery, he caused physical injury to the complainant. As the People concede, it was error for the court to find defendant guilty of assault in the third degree. That crime was neither charged in the indictment nor a lesser included offense of felony assault, inasmuch as under each subdivision of section 120.00 of the Penal Law, a particular culpable mental state is required, whereas in the definition of felony assault, a strict liability offense, mental state plays no part (see Penal Law, § 15.10; People v Green, 56 NY2d 427, 429, 431; see, also, People ex rel. Gray v Tekben, 57 NY2d 651, 653, affg 86 AD2d 176; People v Miguel, 53 NY2d 920,923). We have considered the. other contentions raised by defendant and find them to be without merit. Bracken, J. P., Niehoff, Rubin and Boyers, JJ., concur.