Peoplev.Lee Walker

Appellate Division of the Supreme Court of New York, Fourth DepartmentSep 18, 1981
83 A.D.2d 990 (N.Y. App. Div. 1981)

September 18, 1981

Appeal from the Erie County Court, La Mendola, J.

Present — Cardamone, J.P., Callahan, Doerr, Denman and Schnepp, JJ.

Judgment unanimously modified, on the law and the facts and, as modified, affirmed, in accordance with the following memorandum: Defendant was convicted after a jury trial of two counts of assault in the second degree (Penal Law, § 120.05, subd 3) (causing physical injury to a peace officer with intent to prevent him from performing a lawful duty); resisting arrest (Penal Law, § 205.30) (intentionally preventing or attempting to prevent a peace officer from effecting an authorized arrest) and obstructing governmental administration (Penal Law, § 195.05) (intentionally preventing or attempting to prevent a public servant from performing an official function by means of physical force or interference). Defendant contends and the People concede that resisting arrest is a lesser included offense of assault in the second degree under subdivision 3 of section 120.05 (see People v. Lett, 67 A.D.2d 1077, and cases cited therein) and therefore that count should have been dismissed pursuant to CPL 300.40 (subd 3, par [b]). Defendant's conviction of obstructing governmental administration must also be dismissed as a lesser included count under the facts presented here. The evidence established that defendant interfered with and caused physical injury to two police officers while they were investigating a report of a "break-in." It was "impossible to commit a particular crime" (assault in the second degree under subd 3) "without concomitantly committing, by the same conduct, another offense of a lesser grade or degree" (obstructing governmental administration). It is thus a "`lesser included offense'" (CPL 1.20, subd 37) and should have been dismissed. (See, generally, People v. Perez, 45 N.Y.2d 204.) We have considered the other arguments raised by defendant and find them to be without merit.