People v. Miguel
| Citation | 440 N.Y.S.2d 923,53 N.Y.2d 920,423 N.E.2d 400 |
| Parties | , 423 N.E.2d 400 The PEOPLE of the State of New York, Respondent, v. Thomas MIGUEL, Appellant. |
| Decision Date | 14 May 1981 |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 74 A.D.2d 740, 424 N.Y.S.2d 806, should be affirmed.
At the suppression hearing, defendant contended only that the statements in question should be excluded because they were obtained in violation of his right to counsel and that the eyewitness identification should be excluded because it was inherently unreliable. Both of these contentions were properly rejected below. Inasmuch as defendant failed to object to the admission of this evidence on the ground that it was obtained in violation of his rights under the Fourth Amendment of the United States Constitution (see United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537; Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824), the questions of the propriety of defendant's detention and the admissibility of the resulting evidence are now beyond our limited power to review (People v. Martin, 50 N.Y.2d 1029, 431 N.Y.S.2d 689, 409 N.E.2d 1363; see CPL 470.05, subd. 2; 470.35, subd. 1).
Nor do we find reversible error in the trial court's refusal to submit the charge of assault in the third degree as part of its instructions to the jury. In order to be entitled to have this offense submitted, defendant was required to show both that the offense is, in fact, a lesser included offense within one of the two charged crimes and that "there is a reasonable view of the evidence which would support a finding that the defendant committed lesser offense but did not commit the greater" (CPL 300.50 subds. 1, 2; accord People v. Greer, 42 N.Y.2d 170, 174, 397 N.Y.S.2d 613, 366 N.E.2d 273; People v. Henderson, 41 N.Y.2d 233, 235, 391 N.Y.S.2d 563, 359 N.E.2d 1357). Although it may be true, as defendant contends, that the second prong of the statutory test is satisfied in his case, defendant was nonetheless not entitled to have assault in the third degree submitted to the jury as a "lesser included offense", since that crime is simply not a "lesser included offense" of the two crimes with which he was charged.
The term "lesser included offense" is defined in CPL 1.20 (subd. 37) as follows: "When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense' ". Here, as the case was submitted to the jury, defendant was charged only with robbery in the second degree (Penal Law, § 160.10, subds. 1, 2, par. and felony assault (Penal Law, § 120.05, subd. 6). As is evident from the language of the applicable statutes, defendant could have committed either of these crimes even if he did not act recklessly or with the specific intent to cause physical injury. 1 The crime of assault in the third degree, in contrast, is committed only when the defendant acts recklessly or with specific intent in causing the alleged injury. 2 It is therefore possible to commit both the crime of robbery in the second degree and the crime of felony assault without concomitantly committing assault in the third degree, and, consequently, assault in the third degree is not a "lesser included offense" of either robbery or felony assault. 3 For this reason, CPL 300.50 (subds. 1, 2) did not mandate submission of assault in the third degree to the jury, notwithstanding that there might have been a reasonable view of the evidence which would support a finding that defendant committed that crime, but did not commit the greater crimes of robbery in the second degree and felony assault.
Order affirmed in a memorandum.
1 Section 160.10 of the Penal Law, insofar as it pertains to this case, defines robbery in the second degree as follows:
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