People v. Cionek

Kane, J. These are appeals from Judgments of the County Court of Montgomery County, rendered April 30, 1973, May 1, 1973, May 2,1973 and May 4, 1973, upon verdicts convicting the defendants of the crime of-menacing. These defendants were indicted and tried for the crimes of assault In the second degree and criminal mischief in the fourth degree. When the case was submitted to the jury, the court also submitted as a lesser included offense the crimes of assault in the third degree and menacing. Objections and exceptions to the charges were duly noted on the record. A jury found defendants guilty of menacing, and not guilty of the other charges. Another nonappealing defendant jointly tried was convicted of assault in the third degree. [257] A review of .the evidence is not necessary other than to note that the charges arose out of an altercation on a public highway wherein a male complainant in company with a female companion received serious personal injuries following a beating by defendants, among others, whom the jury found to be equally culpable. While various grounds for reversal are urged upon this appeal, we need consider only the issue of whether menacing is a lesser included offense under a charge of assault in the second degree. Subdivision 1 of section 120.05 of the Penal Law defines assault in the second degree, as: “A person is guilty of assault in the second degree when: 1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person.” Section 120.15 of the Penal Law defines menacing as: “A person is guilty of menacing when, by physical menace, he intentionally places or attempts to place another person in fear of imminent serious physical injury.” CPL 1.20 (subd. 37) defines a lesser included offense as follows: “ When it is impossible to commit, a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, á, ‘ lesser included offense ’ ”. CPL 300.50 (subd. 1) provides: “ 1. In submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to" . submit, submit, in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court , may not submit such lesser offense.”' Both crimes required an intentional act, and in any confrontation prior to acts that would constitute assault in the second degree, fear of imminent serious physical injury concomitantly results. In the case at hand, being outnumbered, attacked and seriously injured produced the ^elements of menacing prior to the consummation of the assault. Although the use of.the word “impossible” in CPL 1.20 (subd. 37) is troublesome, when all of the above sections are read together it seems clear that the Legislature did not mean impossible under any circumstances, but impossible under the particular facts of the case on trial. The rule is one of reason obtained from the study of the evidence — does the lesser offense [258] require proof of .an element which is not required to establish the greater offense f (People v. Gilbert, 72 Misc 2d 795.) When, as in this case, the answer is “ no ”, the charge is proper. The result obtained in this case is. not inconsistent with the reasoning of the Court . of Appeals , in People v. Weixel (28 N Y 2d 738) and People v. Moyer (27 N Y 2d 252). If the evidence justifies a basis for presenting to the jury an ..alternative of choice through the vehicle of a lesser included offense, that crime should be submitted to the jury for its consideration (People v. Mussenden, 308 N. Y. 558). The judgments should be affirmed.