People v. Thomson
Decision Date | 19 February 1970 |
Citation | 310 N.Y.S.2d 2,62 Misc.2d 838 |
Parties | The PEOPLE of the State of New York, Respondent, v. Neale M. THOMSON, Defendant-Appellant. |
Court | New York Supreme Court — Appellate Term |
Before HOGAN, P.J., and GULOTTA and GLICKMAN, JJ.
Defendant moves for reargument of an appeal to the extent that our court affirmed a judgment of conviction on the charge of harassment.
Defendant was charged with assault in the third degree, resisting arrest, and disorderly conduct. The trial court found defendant guilty of resisting arrest and found defendant guilty of harassment, as a lesser offense included in the charge of assault, and disregarded the count of disorderly conduct. We reversed the conviction of resisting arrest and affirmed the defendant's conviction on the charge of harassment.
Defendant calls our attention to People v. Moyer (No. A--111, May 1969 Term), wherein the defendant was tried for assault in the third degree and our court held that a charge to the jury that they could find defendant guilty of the violation of harassment was improper since harassment was not a lesser degree of assault in the third degree. The reversal was also based on the People's failure to establish defendant's guilt beyond a reasonable doubt. We have reexamined both cases and adhere to our original conclusion that a charge of assault may in a proper case warrant a conviction for harassment. In the Moyer case the result was correct since, in any event, the evidence was insufficient to support a finding of guilt on the lesser charge.
The quality of the acts involved under some of the subdivisions of § 240.25 Harassment, e.g. using abusive or obscene language in a public place, have little in common with assault. But where the quality of the act is the same, as it is under subd. 1 of § 240.25, namely, 'strikes, shoves, kicks or otherwise subjects him (the complainant) to physical contact' and the only difference is in whether he intends to and succeeds in effecting a physical injury, there is no impediment to holding the defendant to answer for the lesser offense.
The proof in this case that defendant twice swung at the police officer, who, with admirable restraint, did not return the blows, then wrestled the officer to the ground and twisted his thumb so that it swelled to twice its normal size, would have amply sustained a conviction for assault. Defendant cannot complain that the jury gave him the benefit of a doubt as to his intentions or...
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... ... Dioquardo, 303 N.Y. 514, 104 N.E.2d 881; People v. Easton, 307 N.Y. 336, 339, 121 N.E.2d 357; People v. Thomson, 62 Misc.2d 838, 839, 310 N.Y.S.2d 1). The Defendant is adequately apprised of the charge against her and is sufficiently protected from the hazard of double jeopardy by the specifics set forth in the information (People v. Zambounis, 251 N.Y. 94, 167 N.E. 183; People v. Schultz, 301 N.Y. 495, 95 ... ...
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People v. Almonte
...a thumb so that it swells to twice its normal size has been held a clear showing of "physical injury" (People v. Thomson, 62 Misc.2d 838, 310 N.Y.S.2d 2 (App.Term, 2nd Dept.)), passing reference to a black eye, without any additional evidence of attendant swelling, of vision impairment or o......
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People v. Kehoe
...the offense with which he was charged and that is sufficient”, so that the “section of the law may be disregarded”. In People v. Thomson, 62 Misc.2d 838, 310 N.Y.S.2d 2, the Court affirmed a conviction of a harassment charge, where the information had not listed any statute section, explain......