The Court of Appeals, in a full-fledged opinion by Judge Rivera, reaffirmed prior case law and held that harassment is not a lesser included offense of attempted assault in the third degree, even where both offenses are based on the same conduct. Here defendant was accused of deliberately bumping into the complainant as she was coming up the stairs. She fell back but was not injured because her husband was directly behind her on the stairwell. The defendant was convicted of both offenses and appealed arguing that the harassment conviction could not stand because it was “included” in the attempted assault conviction. The Court of Appeals determined it was possible (in the abstract) to be convicted of one of the two offenses without being convicted of the other because of the different intent requirements—harassment requires the intent to annoy, assault requires the intent to injure:
To establish that a count is a lesser included offense in accordance with CPL 1.20 (37), a defendant must establish “that it is theoretically impossible to commit the greater offense without at the same time committing the lesser” … . Such determination requires the court to compare the statutes in the abstract, without reference to any factual particularities of the underlying prosecution … . Thus, the defendant must show that the offense “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” … . Since defendant cannot establish that in all circumstances it is impossible to commit attempted assault without also committing harassment, his challenge to his conviction on both these counts fails as a matter of law.
Our comparison of attempted assault and harassment establishes that these counts do not share a common intent element. To be guilty of attempted assault in the third degree requires proof that defendant “engage[d] in conduct which tends to effect the commission of [assault],” with the “intent to cause physical injury to another” (Penal Law §§ 110, 120.00 [1]). A conviction for harassment requires that defendant “with intent to harass, annoy or alarm another . . . [,] shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same” (Penal Law § 240.26 [1]). People v Repanti, 2015 NY Slip Op 01375, CtApp 2-17-15