| People v Kurkowski |
| 2011 NY Slip Op 03482 [83 AD3d 1595] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Charles Kurkowski, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered June22, 2010. The judgment convicted defendant, upon a nonjury verdict, of assault in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed and thematter is remitted to Erie County Court for proceedings pursuant to CPL 460.50 (5).
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of assaultin the second degree (Penal Law § 120.05 [4] [reckless assault]), defendant contends thatCounty Court erred in considering assault in the second degree as a lesser included offense ofassault in the first degree (§ 120.10 [1] [intentional assault]). We reject that contention.Inasmuch as "the result and underlying conduct of [reckless assault] and [intentional assault are]identical and the only distinction between the two crimes [is] the mental state of the defendant, itis, within the meaning of CPL 1.20 [37] and CPL 300.50, impossible to commit the latter withoutconcomitantly committing the former" (People v Green, 56 NY2d 427, 432 [1982],rearg denied 57 NY2d 775 [1982]). Thus, contrary to defendant's further contentions, theconviction is not jurisdictionally defective and defense counsel was not ineffective in failing toobject to the court's consideration of the lesser included offense. Although we agree withdefendant that the court failed to comply with CPL 320.20 (5) because it did not notify the partiesthat it intended to consider a lesser included offense until after summations, we conclude thatsuch error is harmless (see People v Harvey, 249 AD2d 951 [1998]; People vKloska, 191 AD2d 587 [1993]; see generally People v Crimmins, 36 NY2d 230,241-242 [1975]). The theory of the defense was that defendant was not the perpetrator, a theorythat applies equally to the offenses of assault in the first degree and assault in the second degree(see Harvey, 249 AD2d 951; People v Peterkin, 195 AD2d 1015 [1993], lvdenied 82 NY2d 758 [1993]). Further, the court offered defense counsel the opportunity toreopen summations for the purpose of addressing the lesser included offense, thus alleviating anypossible prejudice to defendant (see Harvey, 249 AD2d 951; Peterkin, 195 AD2d1015).
Finally, we conclude that the sentence is not unduly harsh or severe, particularly in light ofthe serious nature of defendant's conduct and the severe and permanent injuries sustained by thevictim. Present—Centra, J.P., Fahey, Peradotto, Lindley and Sconiers, JJ.