
    The People of the State of New York, Appellant, v. Donald Moyer, Respondent.
    Argued October 15, 1970;
    decided November 19, 1970.
    
      Carl A. Vergari, District Attorney (B. Anthony Morosco and Andrew J. Natale, Jr. of counsel), for appellant.
    
      Terence J. Smyth for respondent.
   Chief Judge Fuld.

Charged with assault in the third degree (Penal Law, § 120.00) —in that he struck a police officer with intent to cause him injury — the defendant was convicted of harassment (Penal Law, § 240.25), following the trial judge’s instruction to the jurors that they might bring in a verdict adjudging him guilty of ‘ ‘ the lesser offense of harassment ’ ’. Upon appeal, the Appellate Term reversed the conviction and dismissed the information on the ground that harassment may not be deemed a lesser included offense of the crime of assault. We agree with that determination.

We start with the provisions of the Penal Law defining those crimes. Section 120.00 recites that a person is guilty of assault in the third degree when, “ [w]ith intent to cause physical injury to another person, he causes such injury to [him] ”. On the other hand, section 240.25, which defines harassment, requires proof of an “ intent to harass, annoy or alarm ” on the part of the defendant: A person is guilty of that offense, the statute reads, “ when, with intent to harass, annoy or alarm ” he “strikes, shoves, kicks or otherwise subjects [another] to physical contact ’ ’. It may well be that the violation of harassment was introduced into the new Penal Law to cover conduct less serious than the revised and redefined offense of criminal assault, for instance, to cover such “ petty batteries ” as a “ harmless shove or kick ” (Denzer and McQuillan, Prac. Comm., McKinney’s Cons. Laws of N. Y., Book 39, Penal Law, § 240.25, p. 159). But this does not mean that the one offense (harassment) is included in the other.

The violation of harassment requires proof of an element — an intent to harass, annoy or alarm—which is not required to establish the crime of assault. Certainly, the intent to injure which is an element of assault does not include an intent to harass, annoy or alarm. This being so, it necessarily follows that harassment may not be considered a lesser included offense. (Cf., e.g., People v. Mussenden, 308 N. Y. 558.) In other words, since an additional element or fact must be shown to be present in a case of harassment, that violation may not be said to be included in the crime of assault.

This conclusion is confirmed by the provisions contained in the new Criminal Procedure Law which—effective September 1, 1971 — is “designed [along with the revised Penal Law] as an integrated framework for the effective administration of criminal justice ’’ in this State (Governor’s Memorandum on approving L. 1970, chs. 996, 997; McKinney’s Cons. Laws, vol. 11-A, p. vii). Section 220.20 of the new statute, which deals with the taking of a guilty plea, lists a number of rules (subd. 1, pars. [a]-[h]) under which an offense of “lesser grade ” than the one charged in the indictment (or information) may be deemed a “ lesser included offense for plea purposes ” only. More specifically, the section provides that, “ [w]here the crime charged is assault * * * the offense of harassment [Penal Law, § 240.25] is deemed to constitute a lesser included offense ” (subd. 1, par. [f]) “ only for the purposes of conviction upon a plea of guilty and not for purposes of conviction by verdict ” (subd. 2). Had the Legislature deemed that harassment could be a lesser included offense of assault for both purposes — that is, for conviction upon a plea and by verdict — it would have been unnecessary to include that “ assault-harassment ” category among those deemed lesser included offenses for plea purposes only. In other words, by ascribing such special meaning to the term solely to permit the entry of a guilty plea, the Legislature clearly recognized, indeed declared, that harassment was not a “ lesser included offense ” of the crime of assault within the sense of the defining statute (CPL, § 1.20, subd. 37).

It is quite true, as the dissent points out, that subdivision 2 of section 220.20 sanctions a “ conviction by verdict ” whenever a crime constitutes a lesser included offense as defined in the Criminal Procedure Law (§ 1.20, subd. 37). However, as we have already indicated, the Legislature, by specifically stamping harassment as a lesser included offense of assault “ only for purposes of conviction upon a plea of guilty ”, has, as it were, made a legislative finding or determination that it is not such an included crime under the statutory definition (CPL, § 1.20, subd. 37), and this but reflects and perpetuates the present decisional law. (See, e.g., People v. Mussenden, 308 N. Y. 558, supra.)

In short, the trial court erred in charging the jury that it could find the defendant guilty of harassment. It follows, therefore, that the Appellate Term properly concluded that the resulting conviction could not stand.

The order appealed from should be affirmed.

Scileppi, J. (dissenting).

The question presented on this appeal is whether the violation of harassment (Penal Law, § 240.25) constitutes a lesser included offense in the crime of assault in the third degree (Penal Law, § 120.00) for the purpose of conviction by verdict. The majority, by affirming, answers, for all time, this question in the negative. Since it is my view that the answer should be in the affirmative, I dissent and vote to reverse the order appealed from. Inasmuch as the Appellate Term did not pass upon the facts, I would also remand for further factual determinations.

On January 23, 1968 an information was filed charging defendant, Donald Moyer, with assault in the third degree under section 120.00 of the Penal Law, which provides that “A person is guilty of assault in the third degree when * «= # "With intent to cause physical injury to another person, he causes such injury to such person ’ ’. The information described defendant’s conduct in the following manner: “Defendant did with intent to cause physical injury to deponent without just cause or provocation strike and hit deponent about the body with his fists then grasping deponent from behind with his arms It was established at jury trial that the complainant was a police officer who was punched by defendant while the officer was in the process of getting information for a parking summons and that defendant also wrapped his arms around the officer’s chest necessitating the assistance of another police officer. During the People’s case the information was amended over objection to read “ that the defendant did cause physical injury to the complainant ” and the court, again over objection, charged the jury that if they found no real physical injury to the police officer, they might adjudge defendant guilty of the lesser offense of harassment. Defendant was, thereafter, convicted of harassment and on appeal, the Appellate Term reversed the conviction on the ground that it was reversible error for the trial court to instruct that harassment was a lesser included offense.

Section 240.25 of the Penal Law defines the violation of harassment in the following manner: “ A person is guilty of harassment when, with intent to harass, annoy or alarm another person * * * He strikes, shoves, kicks or otherwise subjects him to physical contact, or attempts or threatens to do the same ”, The underlying premise of the majority’s view is that where an individual intends to cause physical injury to another (assault) he simply need not intend to harass, annoy or alarm his victim (harassment). They, therefore, conclude that harassment is not a lesser included offense. Such a notion ignores reality. It is my view that, except in the rare case, acts intended to cause physical injury must include by necessary implication an intent to harass, alarm or annoy the person sought to be injured. In other words, both the harassment and assault statutes are directed toward essentially the same conduct and practically speaking it is impossible to commit one without committing or attempting to commit the other. For example, in the classic case of the student who places a tack on the seat of his teacher’s chair, there would be no question but that the intent to cause physical injury to the teacher, would also encompass an intent to harass, annoy or alarm her.

Similarly, where one throws a firecracker at a police officer to prevent him from issuing a summons, there would be no doubt that the firecracker was thrown with the intent to cause physical injury and to harass. The instant case is no different. When the defendant intending to cause physical injury, punched the police officer, he necessarily intended to harass, alarm or annoy him thereby interfering with the performance of his duties. The mere fact that defendant was not successful in inflicting serious injuries on his victim, does not negate an intent to harass him. Thus, it is my view that it was entirely proper for the trial court to charge that harassment was a lesser included offense.

Nor can support for the majority’s position be found in section 220.20 of the new Criminal Procedure Law (eff. Sept. 1, 1971). That section provides that for the purpose of guilty pleas lesser included offenses are those which meet the requirements of section 1.20 (subd. 37) and those “deemed to be such pursuant to the following rules: * * *

“ (f) Where the crime charged is assault or attempted assault, in any degree, allegedly committed by intentionally causing or attempting to cause physical injury to a person by the immediate use of physical force against him, or where the crime charged is menacing, as defined in section 120.15 of the penal law, the offense of harassment, as defined in subdivision one of section 240.25 of the penal law, is deemed to constitute a lesser included offense”. I do not think that section 220.20 requires the conclusion that harassment is only to be deemed a lesser included offense in plea situations. Subdivision 2 of section 220.20 specifically provides that the rules enunciated in 220.20 (subd. 1) apply only in plea situations and that for the purpose of convictions by verdict “ an offense constitutes a lesser included one only when it conforms to the definition of that term contained in subdivision thirty-seven of section 1.20 ”. Inasmuch as section 1.20 (subd. 37) merely provides that “ [w]hen it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a ‘ lesser included offense ’ ”, it is my view that even under the new Criminal Procedure Law, we will still be free to apply our traditional rules (see, e.g., People v. Mussenden, 308 N. Y. 558) in determining whether or not in a verdict situation one offense can be a lesser included offense in another. Since, as I have indicated, it is impossible to commit an act of assault, third degree, without committing harassment, I am unable to agree with the argument advanced that had the instant case come up under the new Criminal Procedure Law, an affirmance would be mandated.

Finally, I would only add that it is in the broad public interest and in the interest of the defendant as well, for juries to retain their traditional power to convict for lesser included offenses.

Accordingly, the order appealed from should be reversed and the matter remanded to the Appellate Term, Second Department, for further proceedings with respect to any undetermined issues of fact in that court.

Judges Burke, Bergan and Gibson concur with Chief Judge Fuld ; Judge Scileppi dissents and votes to reverse in a separate opinion in which Judges Breitel and Jasen concur.

Order affirmed. 
      
      . The court also held that “ defendant’s guilt was not established by evidence beyond a reasonable doubt.”
     
      
      . The misdemeanor of disorderly conduct — in violation of section 720 of the old Penal Law-—-has been held to be “included” in the crime of assault (see People v. Wein, 196 App. Div. 368) but comparison of the statutes there involved reveals that the elements underlying disorderly conduct and assault were quite similar.
     
      
      . Though the Appellate Term was silent as to the propriety of the amendment of the information, we have all agreed that the amendment was entirely proper (see People v. Easton, 307 N. Y. 336).
     
      
      . I would merely note that the Legislature has recently broadened the concept of what constitutes the crime of assault, for the purpose of Family Court jurisdiction, as including harassment and reckless endangerment (Family Ct. Act, § 812; see People v. Nuernberger, 25 N Y 2d 179 [opn. of Fuld, Ch. J., and Bergan, J., dissenting in part at 183]).
     