39 N.Y.2d 966, People v. Lett

Citation:39 N.Y.2d 966, 387 N.Y.S.2d 106
Party Name:People v. Lett
Case Date:July 01, 1976
Court:New York Court of Appeals
 
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Page 966

39 N.Y.2d 966

387 N.Y.S.2d 106

The PEOPLE of the State of New York, Respondent,

v.

Kevin D. LETT, Appellant.

New York Court of Appeals

July 1, 1976.

Joseph B. Mistreet and Nathaniel A. Barrell, Buffalo, for appellant.

Edward C. Cosgrove, Dist. Atty. (John J. DeFranks, Buffalo, of counsel), for respondent.

MEMORANDUM.

In determining whether an offense is a lesser included offense of the one charged the facts of the particular case, and not the legal abstractions, control (People v. Stanfield, 36 N.Y.2d 467, 369 N.Y.S.2d 118, 330 N.E.2d 75; People v. Johnson, 39 N.Y.2d 364, 384 N.Y.S.2d 108, 348 N.E.2d 564). On the facts of this case we agree that the trial court properly submitted assault in the third degree as a lesser included offense of robbery in the second degree. We find no merit to the defendant's alternative argument that the procedure followed violates due process because it does not adequately advise a defendant of the charges actually pending against him. The details of the assault were set forth in the information and the indictment itself alleged the 'physicial injury'. In addition it would appear that prior to and during the course of the trial the defendant was in no way prejudiced by the submission of the lesser count to the jury.

With respect to due process the question is 'whether the petitioner under the circumstances here disclosed was given reasonable notice and information of the specific charge against him and a fair hearing in open court' (Paterno v. Lyons, 334 U.S. 314, 320, 68 S.Ct. 1044, 92 L.Ed.2d 1409). Here, as...

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