You are here: / / Harassment Not a Lesser Included Offense of Attempted Assault Third De...

Harassment Not a Lesser Included Offense of Attempted Assault Third Degree

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

 

You might also like
DISPUTES INVOLVING COMMERCIAL REAL ESTATE WERE SUFFICIENTLY RELATED TO INTERSTATE COMMERCE TO FALL UNDER THE JURISDICTION OF THE FEDERAL ARBITRATION ACT; PLAINTIFFS’ RESORT TO LITIGATION AND THE RESULTING PREJUDICE TO DEFENDANTS CONSTITUTED A WAIVER OF ARBITRATION.
NYS RACING AND WAGERING BOARD HAD THE DISCRETION TO UNILATERALLY REDUCE PER DIEM WAGES OF SEASONAL EMPLOYEES BY 25 PERCENT.
DEFENDANT APPEARED IN COURT WITH A SUBSTITUTE COUNSEL WHO INFORMED THE COURT ANOTHER LEGAL AID LAWYER WAS BEING ASSIGNED TO DEFENDANT’S CASE; DEFENDANT WAS NOT “WITHOUT COUNSEL” WITHIN THE MEANING OF CPL 30.30; THE ASSOCIATED SPEEDY-TRIAL TIME-PERIOD SHOULD HAVE BEEN CHARGED TO THE PEOPLE, NOT THE DEFENDANT (CT APP). ​
COLLATERAL ESTOPPEL DOCTRINE DID NOT PRECLUDE TESTIMONY ABOUT DEFENDANT’S USE OF A RAZOR BLADE, DESPITE DEFENDANT’S ACQUITTAL ON THE RELATED “DANGEROUS INSTRUMENT” CHARGES IN THE FIRST TRIAL; ADVOCATE-WITNESS RULE REQUIRED THAT DEFENSE COUNSEL’S MOTION TO WITHDRAW OR HER MOTION FOR A MISTRIAL BE GRANTED.
THE PARTY SEEKING TO ENFORCE A VENUE CONTRACT PROVISION HAS THE BURDEN OF DEMONSTRATING THE AUTHENTICITY OF THE SIGNATURE IN THE FACE OF AN ALLEGATION OF FORGERY; HERE DEFENDANT DEMONSTRATED THE SIGNATURE WAS AUTHENTIC AND PLAINTIFF FAILED TO RAISE A QUESTION OF FACT RE: THE FORGERY ALLEGATION (CT APP).
TRUSTEE’S BREACH OF CONTRACT ACTION IN THIS RESIDENTIAL MORTGAGE BACKED SECURITIES CASE WAS TIME-BARRED, THE ACTION COULD NOT RELATE BACK PURSUANT TO CPLR 203 BECAUSE THE TIMELY ACTION BY ANOTHER PARTY WAS PRECLUDED BY THE CONTRACT, THE COURT OF APPEALS COULD NOT CONSIDER WHETHER THE ACTION WAS TIMELY PURSUANT TO CPLR 205, EVEN THOUGH THE ISSUE WAS ADDRESSED BY THE APPELLATE DIVISION, BECAUSE THE ISSUE WAS NOT FULLY ADDRESSED IN SUPREME COURT (CT APP).
An Unconditional Guaranty of Payment of a Another’s Obligations Is Enforceable by Summary Judgment In Lieu of a Complaint In New York, Even In the Face of an Allegation the Underlying Judgment Was the Result of Collusion and Fraud
TOWN PROPERLY DISSOLVED THE EXISTING FIRE PROTECTION DISTRICT AND CREATED TWO NEW FIRE PROTECTION DISTRICTS (CT APP).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Defendant Should Not Have Been Denied His Right to Testify Before the Grand... Denial of “For Cause” Challenges to Jurors Who Said They Needed...