In Gray, the Appellate Division sustained a writ of habeas corpus to the relator, who was indicted and acquitted of assault in the second degree but committed to a mental institution based on a conviction of assault in the third degree, which had been considered a lesser included offense (86 A.D.2d 176).Summary of this case from People v. Ford
Decided July 2, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ABRAHAM ISSEKS, J.
Mario Merola, District Attorney ( Alan D. Marrus of counsel), for appellant.
Malvina Nathanson and William E. Hellerstein for respondent.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), order, insofar as appealed from, affirmed, without costs. The crime of assault in the third degree under subdivision 1 of section 120.00 of the Penal Law is not a lesser included offense of assault in the second degree under subdivision 3 of section 120.05 of the Penal Law inasmuch as it is possible to commit the latter without possessing the intent to injury which is the gravamen of the former (cf. People v Glover, 57 N.Y.2d 61). Petitioner's detention is premised on an invalid verdict and is, therefore, unlawful.
Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER. Taking no part: Judge GABRIELLI.