People v. Chapman
| Decision Date | 05 December 1977 |
| Citation | 400 N.Y.S.2d 104,60 A.D.2d 584 |
| Parties | The PEOPLE etc., Respondent, v. James CHAPMAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Michael E. Lipson, New York City, for appellant.
Eugene Gold, Dist. Atty., Brooklyn (Suzan T. Picariello, Brooklyn, of counsel), for respondent.
Before DAMIANI, J. P., and HAWKINS, SUOZZI and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered November 15, 1976, convicting him of robbery in the first degree (two counts), attempted rape in the first degree, assault in the first degree (two counts) and burglary in the second degree (two counts), after a nonjury trial, and imposing sentence.
Judgment modified, on the law, by reversing the conviction of assault in the first degree under count seven of the indictment, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed.
Notwithstanding the affirmative duty on the court to state, upon the record and prior to summation, the counts upon which it would render a verdict (see CPL 320.20, subd. 5), its failure herein to so inform defendant did not constitute reversible error. Defendant was convicted of the greater offenses charged in the indictment; the counts of attempted sexual abuse in the first degree, attempted sexual misconduct and grand larceny were dismissed as lesser inclusory offenses. Moreover, defendant had interposed a defense of insanity and his counsel's summation would not have been altered if the court had apprised him of the counts which were being considered (see People v. Vicaretti, 54 A.D.2d 236, 388 N.Y.S.2d 410).
In People v. Moody, 52 A.D.2d 959, 383 N.Y.S.2d 626, this court held that it was reversible error for the trial court not to inform counsel, prior to summation, that it intended to consider assault in the second degree as a lesser included offense of an indictment which charged manslaughter. However, unlike the instant case, the defendant in Moody was convicted of the lesser offense, and, hence, was clearly denied the right to a meaningful and effective summation. Accordingly, we find the error harmless beyond a reasonable doubt (see People v. Almestica, 42 N.Y.2d 222, 397 N.Y.S.2d 709, 366 N.E.2d 799).
The District Attorney concedes, and we agree, that defendant's conviction under count seven of the indictment, charging assault in the first degree pursuant to subdivision 4 of section 120.10 of the Penal Law, is a lesser included offense of counts four...
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