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People ex rel. Gray v. Tekben

57 N.Y.2d 651 Court N.Y. Decision date 1982-07-02 English

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p. 651
The People of the State of New York ex rel. James Gray, Respondent, v Erdogan Tekben, as Director, Mid-Hudson Psychiatric Institute, Appellant.
Decided July 2, 1982
p. 653
APPEARANCES OF COUNSEL
Mario Merola, District Attorney (AlanD. Marrus of counsel), for appellant.
Malvina Nathanson and William E. Hellerstein for respondent.

OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 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 NY2d 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.

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