People ex rel. Gray v. Tekben
| Decision Date | 19 April 1982 |
| Citation | 86 A.D.2d 176,449 N.Y.S.2d 276 |
| Parties | The PEOPLE, etc., ex rel. James GRAY, Appellant, v. Erdogan TEKBEN, Director, Mid-Hudson Psychiatric Institute, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Malvina Nathanson and Caesar D. Cirigliano, New York City, for appellant.
Mario Merola, Dist. Atty., New York City (Alan D. Marrus, Asst. Dist. Atty., New York City, of counsel), for respondent.
Before DAMIANI, J. P., and TITONE, LAZER and GIBBONS, JJ.
DAMIANI, Justice Presiding.
The petitioner was indicted by the Grand Jury of Bronx County for assault in the second degree under subdivision 3 of section 120.05 of the Penal Law in that on September 8, 1980, with intent to prevent a peace officer from performing a lawful duty, he caused physical injury to Corrections Officer David Rivera. Thereafter petitioner served a notice upon the District Attorney of the Bronx indicating his intention to offer psychiatric evidence at his trial and stating further that:
Trial was held in the Supreme Court, Bronx County, before Judge CIPARICK without a jury. After both sides rested the court announced its intention of considering the crime of assault in the third degree under subdivision 1 of section 120.00 of the Penal Law as a lesser included offense. Petitioner did not object. The court then rendered a verdict of acquittal of assault in the second degree and rendered a verdict of not responsible for the crime of assault in the third degree by reason of mental disease or defect. The court ordered that petitioner be examined by psychiatrists pursuant to CPL 330.20 to determine whether he had a dangerous mental disorder or was mentally ill.
While confined for the purpose of psychiatric examination, petitioner moved pursuant to CPL 330.30 to set aside the verdict of not responsible by reason of mental disease or defect, claiming that assault in the third degree under subdivision 1 of section 120.00 of the Penal Law was not a lesser included count of assault in the second degree under subdivision 3 of section 120.05, and that the court did not have the right to interpose the defense of insanity on its own motion. On July 29, 1981, Judge CIPARICK denied the motion, holding, inter alia, (1) that the petitioner's own psychiatric evidence established that he was suffering from undifferentiated schizophrenia and was insane at the time he committed the crime and (2) that simple assault under subdivision 1 of section 120.00 was a lesser included offense of assault in the second degree under subdivision 3 of section 120.05 of the Penal Law. Following a hearing, the court found petitioner to be suffering from a dangerous mental disorder and ordered that he be committed to the custody of the State Commissioner of Mental Health pursuant to CPL 330.20 (subd. 6).
Petitioner was sent to the Mid-Hudson Psychiatric Institute and on August 21, 1981 he commenced the instant habeas corpus proceeding against Erdogan Tekben, the director thereof, returnable in the Supreme Court, Orange County. He contended that his detention was illegal because the court lacked the power to (1) enter a verdict on the charge of assault in the third degree which is not a lesser included offense of assault in the second degree and (2) enter a verdict of not responsible by reason of mental disease or defect on its own motion and without his consent.
On September 22, 1981, Justice ISSEKS denied the writ. Petitioner has appealed.
The indictment in the underlying criminal action charged petitioner with assault in the second degree under subdivision 3 of section 120.05 of the Penal Law which states:
Under that section, the only intent required to be proved was that petitioner acted with the intent to prevent a peace officer from performing a lawful duty. Proof of intent to cause physical injury was not required (see People v. Wheeler, 59 Misc.2d 825, 826, 300 N.Y.S.2d 362, affd. 36 A.D.2d 549, 317 N.Y.S.2d 111; People v. Gavin, 24 A.D.2d 656, 261 N.Y.S.2d 98; see, also, Model Charge in 2 Criminal Jury Instructions, pp. 107-111). The crime is thus one of strict liability as far as the injury is concerned. Even if the petitioner caused the injury to the officer accidentally, he was guilty of assault in the second degree if the accident happened while he intentionally acted to prevent the performance of the officer's duty.
Judge CIPARICK considered assault in the third degree under subdivision 1 of section 120.00 of the Penal Law, believing it to be a lesser included offense of the crime for which petitioner was indicted. That section states:
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 because it is possible to commit the latter without possessing the intent to injure which is the gravamen of simple assault (see CPL 1.20, subd. 37).
A criminal court acquires subject matter jurisdiction of the trial of a criminal action by the filing of an accusatory instrument (CPL 100.05, 10.20, 10.30). "A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v. Harper, 37 N.Y.2d 96, 99, 371 N.Y.S.2d 467, 332 N.E.2d 336; see, also, People v. McGuire, 5 N.Y.2d 523, 527, 186 N.Y.S.2d 250, 158 N.E.2d 830; People v. Scott, 3 N.Y.2d 148, 152, 164 N.Y.S.2d 707, 143 N.E.2d 901). In the underlying criminal case, the Supreme Court, Bronx County, obtained jurisdiction with the filing of an indictment charging defendant with the crime of assault in the second degree. That indictment only conferred jurisdiction to render judgment on the charged crime or lesser included offenses thereof (CPL 1.20, subd. 37; 300.30; 300.40; 320.20,...
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