Majority
p. 206The People of the State of New York, Respondent, v. Maria Martini, Appellant. Supreme Court, Appellate Term, First Department, March 12, 1971.
Milton Adler and Janice L. Burnett for appellant. Burton B. Roberts, District Attorney (Busan Froehly Teich of counsel), for respondent.
The defendant was charged with the sole crime of assault in the third degree (Penal Law, § 120.00). After trial on March 5, 1970 she was found guilty of harassment (Penal Law, § 240.25) on the theory expressly propounded by the trial court on the record, that the latter violation is a lesser included offense in the crime of assault. On November 19, 1970 the Court of Appeals in deciding the case of People v. Moyer ( 27 N Y 2d 252 ) explicitly held (p. 254) that “harassment may not be considered a lesser included offense * * * in the crime of assault ’ ’ and affirmed a reversal by the Appellate Division of a conviction for harassment under an information.
p. 207
charging assault. The District Attorney of Bronx County, recognizing the direct, conclusive impact of People v. Moyer (supra) on the conviction of this appellant, joins with the latter in urging that her conviction be reversed. The judgment of conviction should be reversed on the law and the complaint charging assault in the third degree, dismissed.
Concur — Streit, J. P., Gold and Qttixh, JJ.
Judgment reversed, etc.
Cases cited
- People v. Moyer 27 N Y 2d 252 p. 206