23 N.Y.3d 707 (2014)
Harassment in the second degree is not a lesser included offense of attempted assault in the third degree because the intent elements of the two crimes are distinct and it is theoretically possible to commit attempted assault without also committing harassment.
Summary
The New York Court of Appeals held that harassment in the second degree is not a lesser included offense of attempted assault in the third degree. The court clarified that to be considered a lesser included offense, it must be theoretically impossible to commit the greater crime without simultaneously committing the lesser offense. The court found that the intent elements for the two crimes are distinct; attempted assault requires intent to cause physical injury, while harassment requires intent to harass, annoy, or alarm. Therefore, the court affirmed the defendant’s conviction for both attempted assault and harassment, as the latter was not a lesser included offense of the former.
Facts
The defendant, Steven Repanti, and the complainant lived in the same senior community. Following an altercation in a staircase, Repanti was charged with attempted assault in the third degree. The prosecution subsequently added a charge of harassment in the second degree before trial. At trial, the complainant testified that Repanti forcefully “banged into” her with his shoulder. Repanti denied any physical contact. The trial court convicted Repanti of both attempted assault and harassment. The Appellate Term affirmed, and the New York Court of Appeals granted leave to appeal.
Procedural History
The trial court convicted Repanti of both attempted assault and harassment. The Appellate Term affirmed the convictions. The New York Court of Appeals granted Repanti leave to appeal.
Issue(s)
1. Whether harassment in the second degree is a lesser included offense of attempted assault in the third degree.
Holding
1. No, because it is not theoretically impossible to commit attempted assault without also committing harassment.
Court’s Reasoning
The court relied on New York’s Criminal Procedure Law (CPL) 1.20(37), which defines a lesser included offense. The court stated that to establish a lesser included offense, a defendant must show “that it is theoretically impossible to commit the greater crime without at the same time committing the lesser.” The court emphasized this determination must be based on a comparison of the statutes in the abstract, without reference to the specific facts of the case. The court found that attempted assault requires the intent to cause physical injury, while harassment requires the intent to harass, annoy, or alarm. The court explained, “an additional element or fact must be shown to be present in a case of harassment, requiring proof of an intent to harass, annoy or alarm, which is not a required element of an assault count.”
The court cited *People v. Moyer*, which held that harassment is not a lesser included offense of assault, because it requires proof of an intent to harass, annoy, or alarm, which is not a required element of assault. The court also rejected Repanti’s argument that the *Stanfield* rule applied because the counts were based on the same conduct. The court clarified that *Stanfield* was limited by *Glover* which stated, “the theoretical impossibility requirement “is mandated by the provisions of CPL 1.20 (subd 37)”. The court affirmed the convictions based on the distinct intent elements of the two crimes.