New York Law Review

Tag: Attempted Assault

  • People v. Repanti, 23 N.Y.3d 707 (2014): Harassment as a Lesser Included Offense of Attempted Assault

    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.

  • People v. Cabassa, 79 N.Y.2d 722 (1992): Jury Instruction on Lesser Included Offense of Attempted Assault

    People v. Cabassa, 79 N.Y.2d 722 (1992)

    A court must submit a lesser included offense to the jury if it is impossible to commit the greater offense without committing the lesser offense and there is a reasonable view of the evidence that would support a finding that the defendant committed the lesser offense but not the greater.

    Summary

    Cabassa and Lind were convicted of attempted murder and criminal use of a firearm after a high-speed chase where Lind, a passenger in Cabassa’s car, fired shots at pursuing police officers. The Court of Appeals reversed Cabassa’s conviction because the trial court failed to instruct the jury on the lesser included offense of attempted assault in the second degree. The Court held that a jury could reasonably conclude that Lind and Cabassa intended to injure, rather than kill, the officers. Lind’s conviction was affirmed because he failed to request the lesser included offense instruction.

    Facts

    Plainclothes officers in an unmarked taxi observed a Cadillac with inoperable taillights driven by Cabassa, with Lind as a passenger. After the officers identified themselves and instructed the occupants to pull over, Cabassa sped through a red light, initiating a high-speed chase. During the chase, Lind fired several shots at the pursuing police vehicle. Cabassa drove towards a roadblock established by uniformed officers while Lind fired at one of them. Cabassa eventually crashed the car, and both were apprehended.

    Procedural History

    Cabassa and Lind were convicted in the trial court of attempted murder and criminal use of a firearm. Cabassa appealed, arguing that the trial court erred in failing to instruct the jury on the lesser included offense of attempted assault and in allowing him to deliver his own summation without ensuring a knowing waiver of counsel. The Appellate Division affirmed the convictions. Cabassa appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court erred by refusing to instruct the jury on the lesser included offense of attempted assault in the second degree.
    2. Whether the trial court erred in permitting Cabassa to proceed pro se by delivering his own summation without a proper waiver of counsel.

    Holding

    1. Yes, because there was a reasonable view of the evidence to support a finding that Cabassa committed attempted assault rather than attempted murder.
    2. No, because Cabassa did not proceed fully pro se, as his counsel remained and participated in the defense.

    Court’s Reasoning

    The Court of Appeals stated that a lesser offense must be submitted to the jury if (1) it is actually a lesser included offense of the greater charge, and (2) the jury is warranted in finding that the defendant committed the lesser but not the greater crime. Attempted assault in the second degree is a lesser included offense of attempted murder because one who attempts murder necessarily attempts assault. The critical question was whether a reasonable view of the evidence supported a finding that Cabassa only intended to injure, not kill, the officers.

    The Court reasoned that the jury could have found that Lind was shooting to injure rather than kill, considering the circumstances: the moving target, high speeds, and frequent lane changes. The jury could believe that the intent was to distract the driver, cause an accident, or seriously injure and incapacitate the officers to end the chase. Regarding Cabassa’s intent, a juror could reasonably find that he did not share Lind’s intent to kill, even if Lind had that intent. Therefore, the attempted assault charge should have been submitted.

    The Court distinguished between proceeding pro se, which requires a searching inquiry into the defendant’s understanding of the risks, and merely participating in one’s defense. Since Cabassa’s counsel remained and participated, there was no need for a searching inquiry. While alerting a defendant to the benefits of counsel is preferable before granting limited participation, it is not legally required. The court noted Lind did not request or join Cabassa’s request for the charge down and thus waived the argument for appeal.