People v. Smith

13 A.D.2d 1015, 218 N.Y.S.2d 998, 1961 N.Y. App. Div. LEXIS 10145

Opinion

Appeal by defendant from a judgment of the County Court, Westchester County, rendered November 16, 1959, convicting him, after a jury trial, of assault in the second degree (Penal Law, § 242), and sentencing him, as a second felony offender, to serve a term of 8 to 10 years. Defendant was tried upon an indictment containing a single count charging him with the commission of the crime of assault in the first degree (Penal Law § 240). Defendant contends: (1) that notwithstanding the provisions of sections 444 and 445 of the Code of Criminal Procedure and of section 610 of the Penal Law, his conviction is unauthorized inasmuch as the indictment charges assault in the first degree “ with intent to kill,” and such intent is not an essential element of assault in the second degree; (2) that his conviction rests upon findings of fact which were not alleged in the indictment; and (3) that there were errors in the Trial Judge’s charge to the jury. Judgment affirmed. No opinion. Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur.