The People, Respondent,v.Steven Repanti, Appellant.

Brief

N.Y.January 8, 2015

Court of Appeals Docket No. APL-2014-00005 To be argued by: Anthony R. Dellicarri Time: 15 minutes COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- STEPHEN REP ANTI, Defendant-Appellant. BRIEF FOR RESPONDENT (Revised) ITAMARJ. YEGER Executive Assistant District Attorney ANTHONY R. DELLICARRI Respectfully Submitted, THOMAS P. ZUGIBE Rockland County District Attorney Attorney for Respondent 1 South Main Street, 5th Floor New City, New York 10956 (845) 638-5001 (845) 638-5298 (Fax) Supervising Senior Assistant District Attorney Of Counsel TABLE OF CONTENTS Table of Contents .......................................................................................... .i Table of Cases and Authorities .................................................................... ii Preliminary Statement. ................................................................................. l Question Presented ........................................................................................ 1 Jurisdiction to Entertain the Appeal.. .......................................................... l Statement of Facts .......................................................................................... 2 The Trial The People's Case ............................................................................... 2 The Defense Case ............................................................................... .3 The People's Rebuttal. ....................................................................... 5 The Verdicts ........................................................................................ 5 ARGUMENT DEFENDANT FAILED TO PRESERVE AT TRIAL ms CLAIM THAT THE COURT SHOULD HA VE CONSIDERED HARASSMENT IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE OF ATTEMPTED ASSAULT IN THE THIRD DEGREE RATHER THAN CONSIDER THEM INDEPENDENTLY. IN ANY EVENT THE APPELLATE TERM CORRECTLY HELD THAT THE VERDICT WAS NOT DEFECTIVE BECAUSE HARASSMENT IN THE SECOND DEGREE IS NOT A LESSER INCLUDED OFFENSE OF ATTEMPTED ASSAULT IN THE TIDRD DEGREE. FINALLY, SHOULD TIDS COURT FIND THAT IT IS, IT SHOULD MERELY REVERSE THE HARASSMENT CONVICTION BUT AFFIRM THE ATTEMPTED I . ASSAULT CONVICTION .......................................................................... 6 Conclusion .................................................................................................... 16 Certification Pursuant To 22NYCRR §130-1.1-a ..................................... l 7 1 Defendant raised issues in his Appellate Tenn Brief that he does not repeat here. The People have not responded to those points and respectfully request that this Court deem them abandoned. TABLE OF AUTHORITIES Cases: People v. Becoats, 17 NY3d 643 (2011); cert. denied, 566 US_ (2012) .................... 7 People v. Buckley, 75 N.Y.2d 843 (1990) ........................................................................ 8 People v. Davis, 14 NY3d 20, 22-23 (2009) ................................................................. 6, 9 People v. Davis, 91A.D.3d567 (!st Dep't 2012) .......................................................... .15 People v. Moyer, 27 NY2d 252 (1970) ................................................................. 9, 12, 13 People v. Dokes, 79 NY2d 656, 662 (1992) ..................................................................... 7 People v. Ford, 66 N.Y.2d 428 (1985) ........................................................................... 11 People v. Ford, 76 N.Y.2d 868 (1990) ........................................................................... 10 People v. Glover, 57 NY2d 61, 63 (1982) ....................................................................... 9 People v. Green, 56 N.Y.2d 427 (1982) ........................................................................ 10 People v. Grier, 37 N.Y.2d 847 (1975) ........................................................................ .15 People v. Griffin, 48 A.D.3d 1233 (4th Dep't 2008) .................................................... .15 People v. Hanley, 20 NY2d 601, 604 (2013) ................................................................. 6 People v. Hayes, 104 A.D.3d 1050 (3d Dep't 2013) .............................................. .14-15 People v. Iannone, 45 N.Y.2d 589, 600 (1978) ............................................................ 7 People v. James, 11 N.Y.3d 886 (2008) ........................................................................ 9 People v. Kelly, 5 NY3d 116, 119 (2005) ..................................................................... 7 People v. Lee, 39 NY2d 388 (1976) .......................................................................... .15 People v. Luperon, 85 NY2d 71 (1995) ....................................................................... 8 People v. Martin, 50 NY2d 1029, 1031 (1980) ........................................................... 8 People v. Martin, 59 N.Y.2d 704 (1983) .................................................................... 11 ii People v. McLaughlin, 80 NY2d 466, 471 (1992) ....................................................... 7 People v. Menchetti, 76 N.Y.2d 473 (1990) .................................................................. 9 People v. Michael, 48 NY2d 1, 6 (1979) ........................................................................ 7 People v. Miller, 6 N.Y.3d 295 (2006) ............................................................... 9, 10, 11 People v. Mohammed, 17 N.Y.3d 532 (2011) ............................................................. .14 People v. Moore, 41A.D.3d1149 (4th Dep't 2007) .................................................... .14 People v. Morris, 68 N.Y.2d 799 (1986) ....................................................................... 14 People v. Moyer, 27 NY2d 252 (1970) ........................................................................... 9 People v. Ortiz, 95 A.D.3d 1140 (2d Dep't 2012) ........................................................ .15 People v. Parilla, 8 NY3d 654, 659 (2007) .................................................................... 7 People v. Patterson, 39 N.Y.2d 288, 296 (1976) ............................................................ 7 People v. Pepper, 59 NY2d 353, 360 (1983) .................................................................. 7 People v. Randolph, 81N.Y.2d868 (1993) ................................................................. .11 People v. Reid, 58 A.D.2d 611 (Second Dep't. 1977) .................................................. 13 People v. Rodrigues, 74 A.D.3d 1818 (4th Dep't 2010) .............................................. .14 People v. Samms, 95 NY2d 52 (2000) ............................................................................ 8 People v. Todd, 59N.Y.2d 694 (1983) ..................................................................... 9, 12 People v. Turiago, 90 NY2d 77, 84 (1997) ................................................................... 7 People v. Van Norstrand, 85 N.Y.2d 131(1995) ........................................................... 9 People v. Valiton, 83 NY2d 192, 195 (1995) ................................................................. 8 People v. Wheeler, 67 N.Y.2d 960 (1986) ................................................................... 10 Policano v. Herbert, 7 N.Y.3d 588 (2006) ................................................................... 10 iii PRELIMINARY STATEMENT Defendant STEVEN REP ANTI appeals from an order of the Appellate Term, Second Department, Ninth and Tenth Judicial Districts, entered July 8, 2013, that affirmed a judgment of the Justice Court of the Town of Ramapo, Rockland County (Etelson, J.), entered May 5, 2011, convicting him, after a non-jury trial, of Attempted Assault in the Third Degree [Penal Law §§110/120.00 (l)] and Harassment in the Second Degree [Penal Law§ 240.26 (!)]. The court sentenced him to a term of probation of one year on the attempted assault conviction and a $250.00 fine on the harassment conviction, along with a $125.00 surcharge. Defendant has paid the fine and surcharge and has successfully completed his term of probation. QUESTION PRESENTED Were the verdicts of guilty on both Attempted Assault in the Third Degree and Harassment in the Second Degree as found by the trial court in the nonjury trial defective? The trial court found Defendant guilty of both charges and in affirming the convictions, the Appellate Term rejected his arguments on these and other grounds. JURISDICTION TO ENTERTAIN THE APPEAL This Court does not have jurisdiction to entertain the question presented by Defendant on this appeal. By failing to raise at the appropriate juncture in this nonjury trial any issue regarding whether the charge of Harassment in the Second Degree was a lesser included offense of the charge of Attempted Assault in the Third Degree, Defendant has failed to preserve the issue for review by this Court. 1 STATEMENT OF FACTS These proceedings were commenced by the filing of a misdemeanor information on November 21, 2009, charging defendant with one count of Attempted Assault in the Third Degree. On November 18, 2010, the scheduled trial date, the People filed and served a Prosecutor's Information that included the original Attempted Assault in the Third Degree count and added one count of Harassment in the Second Degree. THE TRIAL The People's Case . Seventy-one year old Carol Goldman lived with her husband, Martin Goldman, at Dashaw Drive,, .in the Spook Rock Senior Complex in Suffern, New York, in the Town of Ramapo (SA: 2).1 Mr. and Mrs. Goldman shared the outside stairs and landing in front of their apartment with their neighbor, Mrs. Lydia DeHay (SA: 2-3, 19-20). On November 21, 2009, at approximately 2:45 p.m., the Goldmans were returning home, walking on the path that leads to their apartment when they each saw defendant in Mrs. DeHay's apartment through Mrs. DeHay's window (SA: 3). Mrs. Goldman heard defendant say "Wait a minute, I have something to do." She then saw him leave Mrs. DeHay's apartment and come out onto the landing (SA: 6). As Mrs. Goldman reached the second step, defendant came towards her and banged into her right shoulder with his right arm and shoulder. Mrs. Goldman fell backwards, but her husband caught her (SA: 7-8, 21-22). Defendant said nothing, did not stop and did not even tum around (SA: 22- 23). 1 Numerals in parentheses preceded by "A" refer to pages of the Appendix submitted by Appellant. Those numerals preceded by "SA" refer to pages of the Supplemental Appendix submitted by Respondent. 2 Defendant, who !mew the Goldmans, was not friendly and had antagonized Mrs. Goldman in the past. Mrs. Goldman was "petrified" of him (SA: 24-25).2 The Defense Case Mrs. LYDIA DEHAY, the resident of1 _ at the Spook Rock Senior Complex, knew defendant for "ten, fifteen" years (SA: 26). Defendant lived in the same complex, but in one of the other buildings. She also knew the Goldmans, who lived upstairs from her (SA: 26-27). Mrs. DeHay claimed the incident happened during the summer, not in November (SA: 40). She testified that Mr. Goldman was walking in front of Mrs. Goldman (SA: 31, 38-39). At the point when she saw the Goldmans, defendant had been sitting on her reclining chair and could not have seen them (SA: 31-32, 36). Defendant then said "Oh, let me get the laundry," or "I have to go back. Let me get the laundry first," got up from the recliner and walked out (SA: 35). Mrs. DeHay claimed that when defendant left her apartment, the Goldmans were "pretty far away" and had not reached the steps. Defendant, she asserted, "walked out" and went straight to the laundry room (SA: 37-38). Mrs. Dehay claimed that Defendant did not pass the Goldmans on the stairs (SA: 39-40). Defendant STEVEN REP ANTI testified on his own behalf. He lived a' Drive,, Suffern, New York. He had lived there for nine and one-half years as of trial (SA: 41-42). Defendant testified that on November 21, 2009, he had helped Mrs. DeHay with her laundry. He recalled that he regularly did her laundry for her at approximately "2: 15, 2:45" (SA: 2 Mr. Goldman also recalled that when they were in court on November 18, 2010, he saw defendant outside, standing near a car about forty feet away from them. Defendant smiled at them and made a vulgar hand motion (SA: 24-25). 3 41-42). Prior to the incident involving Mrs. Goldman, he had taken Mrs. DeHay's laundry to the laundry room and had put it into a washing machine (SA: 42). He then returned to Mrs. DeHay's residence and sat on her recliner, while she sat at the kitchen table (SA: 43, 48). Defendant further recalled that he waited for about one-half hour before he got up to return to the laundry room (SA: 44). Defendant claimed he then exited the apartment, made a left tum onto the dirt, and went towards the basement doors. He claimed that he had not waited at the top of the stairs for any period of time (SA: 44). He then stated that when he first saw the Goldmans, they were about thirty to forty feet straight ahead. He alleged that they were walking side-by-side and further claimed that he had no contact with the Goldmans at that time. (SA: 45-46). Defendant admitted he took several medications, including Depakot, Ambien and Clonapin, to stabilize his moods (SA: 45-46).3 He had attempted suicide on several past occasions (SA: 55). Mrs. HILDA KOGUT, an adjunct professor of criminal justice at Dominican College and Westchester Community College and a former special agent with the Federal Bureau of Investigation, testified that she knew defendant and other residents of the Spook Rock Senior Complex, as her mother lived there (SA: 57-58). Mrs. Kogut testified that she knew Defendant's reputation for being friendly and helpful and had in fact discussed these traits of defendant with residents of the complex (SA: 58-59). 3 When the prosecutor asked Defendant about his history of mental illness, Defendant first responded that he did not think that his mental illness was " ... any concern of this case." He next decided to " ... take the Fifth" on that question. When he was ordered by the court to respond, Defendant persisted in responding that his mental history was not relevant to the case (SA 53-54). 4 The People's Rebuttal Sergeant ANTHONY GIARDINA, a twelve-year veteran of the Town of Ramapo Police Department, was on duty and assigned to a patrol unit on November 21, 2009, and responded to a complaint of an attempted assault at the Spook Rock Senior Complex (SA: 60-61 ). Sergeant Giardina spoke to the complainant, Mrs. Carol Goldman, and her husband, Martin Goldman (SA: 61-62). Sergeant Giardina recounted a story similar to the Goldman's concerning the attack (SA: 62). Later that day, Sergeant Giardina recalled, he went to defendant's residence to serve him with a criminal summons (SA: 62). Sergeant Giardina also spoke with Mrs. DeHay. Mrs. DeHay told the sergeant that she saw the Goldmans approach and that defendant had actually passed the Goldmans on the steps, but had no contact with them (SA: 63). This contradicted Defendant's claims that: (1) the Goldmans were on the sidewalk before the steps when he walked down; (2) they never passed on the steps at all; (3) he had purposely avoided them; and, (4) had no conversation with them (SA: 64) The Verdicts At the conclusion of trial, the Court pronounced defendant guilty of Attempted Assault in the Third Degree and Harassment in the Second Degree and sentenced him as outlined above (SA: 65-71 ). The Appellate Term affirmed the convictions. 5 ARGUMENT POINT ONE DEFENDANT FAILED TO PRESERVE AT TRIAL HIS CLAIM THAT THE COURT SHOULD HA VE CONSIDERED HARASSMENT IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE OF ATTEMPTED ASSAULT IN THE THIRD DEGREE RATHER THAN CONSIDER THEM INDEPENDENTLY. IN ANY EVENT THE APPELLATE TERM CORRECTLY HELD THAT THE VERDICT WAS NOT DEFECTIVE BECAUSE HARASSMENT IN THE SECOND DEGREE IS NOT A LESSER INCLUDED OFFENSE OF ATTEMPTED ASSAULT IN THE THIRD DEGREE. FINALLY, SHOULD TIDS COURT FIND THAT IT IS, IT SHOULD MERELY REVERSE THE HARASSMENT CONVICTION BUT AFFIRM THE ATTEMPTED ASSAULT CONVICTION.4 A. Defendant Completely Failed to Preserve His Claim that Harassment in the Second Degree is a Lesser Included Offense of Attempted Assault in the Third Degree. Defendant argues here that under the facts presented at trial, Harassment in the Second Degree as charged in the prosecutor's information must be considered a lesser included offense of the Attempted Assault in the Third Degree charge. As sucli, he claims, a verdict of guilty on the lesser charge must be considered to be an acquittal on the greater (Defendant's Brief, pg. 8). Examination of the record reveals that at each juncture of the non jury trial that Defendant could have raised the issue, he failed to do so. He did not protest at the conclusion of the evidence, when the court went directly into summations. Nor did he raise the issue at any time between the court's rendition of its verdict and the sentencing date, weeks later. As a general rule, the Court of Appeals does not consider claims of error not preserved by appropriate objection in the court of first instance. People v. Hanley, 20 N.Y.2d 601, 604 (2013); People v. Davis, 14 N.Y.3d 20, 22-23 (2009). While an intermediate appellate court may grant relief on the basis of an unpreserved error as a matter of discretion in the interest of justice, 4 Defendant raised issues in his Appellate Term Brief that he does not repeat here. The People have not responded to those points and respectfully request that this Court deem them abandoned. 6 the decision of the intermediate appellate court cannot be reviewed by the Court of Appeals. People v. Turiago, 90 N.Y.2d 77, 84 (1997). See, also, People v. Pepper, 59 N. Y.2d 353, 360 (1983); People v. Iannone, 45 N. Y.2d 589, 600 (1978). A narrow exception exists for situations involving "mode of procedure errors" People v. Kelly, 5 N.Y.3d 116, 119 (2005). This exception takes in only the most fundamental of flaws [(People v. Becoats, 17 N.Y.3d 643 (2011); cert. denied, 566 US_ (2012)]-- such as those that implicate jurisdictional matters, or "rights of a constitutional dimension that go to the very heart of the process" [(People v. Parilla, 8 N.Y.3d 654, 659 (2007)] or situations where the procedure adopted by the court below is at a basic variance with the mandate of law, the entire trial is irreparably tainted [People v. Patterson, 39 N.Y.2d 288, 296 (1976)]. "Certain principles oflaw are deemed so fundamental to our criminal justice system that a claimed violation of those principles creates a question oflaw despite the failure to timely raise the claim in the courts below." People v. Michael, 48 N.Y.2d 1, 6 (1979), (This Court held that a claim that the constitutional prohibitions against double jeopardy had been violated posed a question oflaw reviewable in Court of Appeals). See, also, People v. McLaughlin, 80 N.Y.2d 466, 471 (1992)(objection is required where the error claimed goes to the power of the court to hear the case, as in issues involving geographical jurisdiction, or where there has been a violation ofa defendant's fundamental rights). See, e.g., People v. Dokes, 79 N.Y.2d 656, 662 (l 992)(issue concerned whether defendant's right to be present at trial had been violated). Defendant now claims at page 8 of his brief to this Court that an off-handed conversational remark made by counsel at the sentence proceeding, prior to presenting his recommendations to the court, served to preserve the issue for review by this Court. The record belies this assertion. At sentencing, after verifying that the parties had reviewed the Presentence 7 j. Investigation Report, the court asked each side for their respective recommendation for sentence. After the prosecutor spoke (A: 28-29), the court turned to Defendant's counsel, who stated: Judge, just briefly. I'm a little puzzled about a conviction for both charges. I think it's one or the other. I had tended to believe the harassment would be more appropriate based on the evidence. I don't really think he could be convicted of both and sentenced for both. But in any event, Judge, I would ask the Court to consider his · circumstances ... (A: 29). Criminal Procedure Law Section 470.05(2) controls. In discussion ofC.P.L. §470.05(2), this Court has held that what is required, at the very least, is that any matter which a party wishes the appellate court to decide must have been brought to the attention of the trial court at a time and in a manner that gave the trial court the opportunity to remedy the problem and thereby avoid reversible error. People v. Luperon, 85 N.Y.2d 71, 78-79 (1995)(emphasis added). See People v. Martin, 50 N.Y.2d 1029 (1980). See, also, People v. Buckley, 75 N.Y.2d 843, 846 (party must specify his or her objection "to preserve legal error with respect to lesser included offenses."). B. Defendant's Substantive Claim that Harassment in the Second Degree is a Lesser Included Offense of Attempted Assault in the Third Degree Relies on Case Law This Court has Overruled, and the "Differing Mental State" Exception This Court has Carved out from the General Rule does not Apply Here Because the Two Crimes Entail "Different Results" with the Same Degree oflntent). Should this Court determine that defendant somehow preserved his claim, it should nevertheless deny it because Harassment in the Second Degree as charged in the prosecutor's information is not a lesser included offense of the Attempted Assault in the Third Degree. This Court has already ruled that harassment is not a lesser included offense of a 8 completed assault. People v. Moyer, 27 N.Y.2d 252 (1970). There, the People charged the defendant with Assault in the Third Degree. During the court's charge, the trial court instructed the jury that it could find defendant guilty of harassment instead, and they did so. The Appellate Term reversed, and this Court affirmed that reversal. This Court so ruled because, as it correctly noted, harassment required proof of an intent to harass, annoy or alarm, an element that is not required to establish assault. Id. Since Moyer, this Court has further developed jurisprudential authority regarding lesser included offenses that merely cements its conclusion that harassment is not a lesser included offense of third degree assault. This Court has set forth a very strict standard that courts must follow to determine whether one crime is a lesser included offense of another crime if "it is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense." People v. Glover, 57 N. Y.2d 61, 63 (1982) (emphasis supplied). This Court noted that C.P.L. §1.20(37) mandates this initial analysis. This Court has faithfully followed this statutory mandate throughout its subsequent lesser-included-offense jurisprudence. See People v. Davis, supra, at 22-23 (2009); People v. James, 11 N.Y.3d 886, 888 (2008) People v. Miller, 6 N.Y.3d 295, 302-03 (2006); People v. Van Norstrand, 85 N.Y.2d 131, 135 (1995); People v. Menchetti, 76 N.Y.2d 473 (1990) People v. Todd, 59 N.Y.2d 694 ( 1983 ). The People request that this Court continue to adhere it this well-established line of cases. Thus, for example, this Court has found that " [A ]ttempted Sexual Abuse in the First Degree is not a lesser included offense of Attempted Rape in the First Degree" because rape requires some degree of penetration while sex abuse required merely touching for sexual 9 gratification. People v. Wheeler, 67 N.Y.2d 960, 962 (1986). This Court explained that while "it would be impossible to commit the crime of rape without "touching of the sexual or other intimate parts" of the victim, it is, of course, possible to commit rape without the actor having as his purpose the gratification of either party's sexual desire." People v. Wheeler, supra. Similarly, this Court has found that" [S]exual Abuse in the First Degree (Penal Law§ 130.65) is not a lesser included offense of First Degree Sodomy .... " People v. Ford, 76 N.Y.2d 868 (1990) for similar reasons; the two crimes require distinct intents. This Court has, however, carved out but a single "exception" to this jurisprudence: "where the crimes involve the same conduct and result, but contemplate a differing mental element, a crime involving reckless conduct may properly be considered a "lesser included offense" of a crime involving intentional conduct." People v. Green, 56 N.Y.2d 427 (1982) (emphases supplied; citations omitted). Thus, in Green, the defendant was charged with murder and intentional assault in the first degree. The defendant requested that the court give, as a lesser included offense to the intentional assault count, the charge of assault in the second degree, as it required the same act and result but a different mental state, i.e., intent versus recklessness. This Court stated the rule as follows: "A crime which as defined by the Penal Law includes as an element defendant's mental state can be a lesser included offense of a crime the defmition of which requires the same act but a higher mental state, but cannot be a lesser included offense of a crime in the defmition of which mental state plays no part." People v. Green, id., at 429. Green affirmed this aspect from an older line of cases. Id. at 432-33. Thus, for example, this Court has repeatedly held that the various homicides are lesser included offenses because they merely require different mental states: intent, depraved indifference, recklessness and criminal negligence. See Policano v. Herbert, 7 N.Y.3d 588, 600 (2006); People v. Miller, 6 N.Y.3d 295 10 (2006) (felony murder lesser included of intentional murder); People v. Randolph, 81 N.Y.2d 868 (1993) (criminally negligent homicide lesser included ofreckless manslaughter); People v. Ford, 66 N.Y.2d 428 (1985) (criminal possession of a weapon in the third and second degrees); People v. Martin, 59 N.Y.2d 704 (1983) (trespass lesser included of burglary). Under the Green/Glover analysis, Harassment in the Second Degree is not a lesser included offense of Attempted Assault in the Third Degree because the mental state (intent) is identical, but the result (injury versus annoying etc ... ) is different. Indeed, it is easy to construct scenarios where a criminal may commit either crime without concomitantly committing the other crime. A defendant commits Attempted Assault in the Third Degree when, "with intent to cause physical injury to another person, he [attempts to] cause such injury to such person or to a third person." Penal Law§§ 110.00/120.00(1). On the other hand, a defendant commits Harassment in the Second Degree when, "with intent to harass, annoy or alarm another person ... he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." Penal Law§ 240.26(1). The differences in the result, and even the intent, render these statutes incapable under this Court's settled jurisprudence of either being a lesser included of the other. The claimed "greater" offense requires the intent to injure; the "lesser" requires no such intent. The "lesser" offense requires the intent to "harass, annoy or alarm;" the "greater" does not require this intent. The "lesser" can be committed merely via "threats," but the greater requires a physical act that may or may not result in contact or injury. Under this Court's well-settled "theoretical impossibility" standard for lesser included offenses, these two statutes simply do not qualify. 11 As the People note above, it is fairly simple to supply examples that demonstrate real- world possibilities of committing Attempted Third-Degree Assault without committing Second Degree Harassment and vice-versa. The People offer two here: 1) A person approaches a woman from behilld, punches her in the back, and runs away. The woman never sees her attacker, but is not seriously injured. The defendant has committed attempted third-degree assault without committing second degree harassment; 2) A person approaches a man from the front, and begins screaming at him that he. will kill him while swinging a baseball bat. The defendant never gets closer than five feet (too far to hit the victim) but the victim is scared witless. The defendant has committed harassment second without committing attempted assault third degree. Even a cursory perusal of the statutes and these simple examples reveal that it is easy to commit one without committing the other. By contrast, in the cases Defendant cites, this Court correctly ruled that the greater crime encompassed the lesser crime. Thus, this Court should follow its own well-settled case law and affirm Defendant's two convictions for these entirely separate crimes. It is true that this Court utilized an older statute to support its decision in Moyer that these crimes are not lesser-greater offenses, but that it ultimately a distinction without a difference. When this Court decided Moyer, a statute limited harassment's lesser included stature to plea agreements alone. Former C.P.L. §220.20; Moyer, supra, at 254. That statute has since been repealed (L 1973, Ch. 276, eff. Sept. 1. 1973). But that should not change the result here, especially considering that this Court utilized the former statute merely to "confirm" the result, relying in the first instance on the differing intent elements that have not changed since that time. This is especially true because this Court followed Moyer and refused to reverse a count for refusing to charge harassment as a lesser included offense of Assault in the Third Degree even after §220.20 was repealed. People v. Todd, 59 N.Y.2d 694, 696 (1983). 12 The People also respectfully disagree.with the examples set forth in the Moyer dissent-- examples that, in its view, demonstrate that the intent to injure encompasses the intent to annoy harass or alarm and vice versa. People v. Moyer, supra, at 255-58 (Scileppi, J., dissenting). It is easy to envision "the classic case of the student who places a tack on the seat of his teacher's chair," where the student wishes to either injure the teacher without annoying him, or annoy the teacher without injuring him. Similarly, "where one throws a firecracker at a police officer to prevent him from issuing a summons," it would be very easy to envision either an intent to injure or to annoy (although, in truth, the true intent would be to prevent the ticket, and so perhaps an obstruction charge would be more appropriate). In light of the above analysis, it is easy to see where Defendant's legal analysis fails. Defendant correctly recites this Court's jurisprudence with regard to the general rule and the mental state exception (Defendant's Brief at 5-7). He goes off course, however, in conflating different "culpable mental states" -- i.e., knowing versus intent versus depraved versus reckless versus criminal negligence -- with different results within each culpable mental state, i.e., intent to injure versus intent to alarm (Defendant's Brief at 7-8). Thus, this Court should reject his claim and affirm the Appellate Term's decision affirming Justice Court's judgment convicting of both crimes. C. Should this Court Reverse Its Long-Standing Jurisprudence and Rule that that Harassment in the Second Degree is a Lesser Included Offense of Attempted Assault in the Third Degree, It Should Reverse Only the Lesser Harassment Offense. Should the Court find harassment is a lesser included offense of attempted assault, reversal is not warranted. Assuming, arguendo, that the trial court was correct in considering both charges, as they were perhaps "inclusory concurrent counts," this Court should merely 13 dismiss the lesser harassment count, not the greater attempted assault count. 5 Should this Court determine that Defendant is correct, and the "inclusory concurrent count" analytical framework analysis applies here, it should merely affirm the greater assault count and reverse only the lesser harassment count. Criminal Procedure Law Section 300.40(3)(b) governs when and how to submit inclusory concurrent counts for the fact-finder's consideration. That statute, as applicable here, requires: (b) With respect to inclusory concurrent counts, the court must submit the greatest or inclusive count and may or must, under circuinstances prescribed in section 300.50, also submit, but in the alternative only, one or more of the lesser included counts. A verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted, but not an acquittal thereon. A verdict of guilty upon a lesser count is deemed an acquittal upon every greater count submitted. To begin, defendant's claims that the verdict should be entirely reversed, or that the greater charge should be reversed rather than the lesser charge, is not preserved. It does appear that defendant is entitled, even absent preservation, to have one of the two charges dismissed. A claim that one of the two charges should be dismissed, apparently does not require preservation. See People v. Hayes, 104 A.D.3d 1050 (3d Dep't 2013); People v. Rodrigues, 74 A.D.3d 1818 (4th Dep't 2010); People v. Moore, 41A.D.3d1149 (4th Dep't 2007). However, this Court should require a defendant to raise before the trial court his particular claim in these unusual circumstances, where defendant claims that the greater crime should be dismissed when the factfinder convicts of both a greater and a lesser offense. The reasoning is simple. Given a timely objection, the factfinder could return to deliberations and determine whether they or it 5 Initially, what defendant may really be arguing is that the verdict is inconsistent or repugnant, because the trial court should not have convicted him of both the greater and the lesser crime. See, e.g. People v. Mohammed; 17 N.Y.3d 532, 539-40 (2011) (comparing repugnancy and lesser included offense jurisprudence). However, repugnancy requires preservation, and defendant essentially concedes he did not properly preserve this claim because he first raised any issue at all at the sentencing. People v. Morris, 68 N.Y.2d 799 (1986). 14 wanted to find the defendant guilty of the greater or the lesser charge. Thus, although no preservation is required to dismiss one count, absent a request of the court for dismissal of the greater count, then the lesser count, and not the greater one, should be dismissed. This result makes the most sense when this Court considers the meaning of a conviction for a greater and a lesser offense. After all, by convicting of the greater offense, a judge or jury necessarily finds that the defendant committed the greater act. There is no reason to reward a defendant convicted of both a lesser and a greater crime to reap larger rewards than he or she deserves. Dismissal the lesser count gives better consideration to the factfinder's intent that the defendant be convicted of the greater offense. The case law surrounding inclusory counts supports this conclusion. Indeed, People v. Lee, 39 N.Y.2d 388 (1976) is dispositive ofDefendant's claim. There, the defendant was convicted of both selling drugs and, apparently, simple possession of those same drugs. This Court reversed only the lesser count as an "inclusory concurrent count" of the conviction for the greater drug charge. Id. at 390; See also People v. Grier, 37 N.Y.2d 847 (1975). This Court has cited Lee with approval, and the lower appellate courts have repeatedly relied upon Lee and Grier to dismiss the lesser charge only when the fact finder convicted of both the greater and the lesser charges. See, e.g., People v. Hayes, 104 A.D.3d 1050, 1052 (3d Dep't 2013); People v. Ortiz, 95 A.D.3d 1140, 1141 (2d Dep't 2012); People v. Davis, 91 A.D.3d 567, 569 (!st Dep't 2012); People v. Griffin, 48 A.D.3d 1233, 1237 (4th Dep't 2008). Here, the court convicted defendant of both attempted assault and harassment. To the extent that harassment is a lesser included offense, this Court should dismiss it, and not the attempted assault charge. Defendanfs contrary claim, that the attempted assault charge should be dismissed (Defendant's Brief at 8-9), 15 would require this Court to rewrite about forty years of its jurisprudence. Defendant supplies this Court with no reasoning for it to do so.6 CONCLUSION For the reasons stated herein, Defendant's convictions must be, in all respects, affirmed, IT AMAR J. YEGER Executive Assistant District Attorney ANTHONY R. DELLICARRI Supervising Senior Assistant District Attorney Of Counsel Respectfully submitted, THOMAS P. ZUGIBE District Attorney Rockland County Attorney for Respondent 6 In the alternative, this Court should at least consider remanding to the Justice Court for it to determine whether it wished to convict of the greater or the lesser charge. 16 COURT OF APPEALS STATE OF NEW YORK -----------------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- Docket No. APL-2014-00005 STEVEN REP ANTI, Defendant-Appellant. ------------------------~-----------------~--------------------------------)( SIGNING REQIDREMENT CERTIFICATION PURSUANT TO 22N.Y.CRR §130-1.1-A I hereby certify pursuant to 22N.Y.CRR 130-1.1-A that, to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the papers listed below or the contentions therein, are not frivolous as defined in 22N.Y.CRR 130-1.1-c. RESPONDENT'S BRIEF SUPPLEMENTARY APPENDIX RELATED REQUIRED APPELLATE FORMS Dated: New City, New York May 15, 2014 ANTHON.Y. R. DELLICARRI Supervising Senior Assistant District Attorney Rockland County Attorney for Respondent 17