People v. Ginther

The findings of fact below have not been considered. Defendant was charged with assault in the third degree (Penal Law, § 244, subd. 1), a misdemeanor, in that on August 4, 1959, he struck one Frank Lankenau with his fists. On the trial it appeared that Lankenau was approaching his place of business when defendant’s associate handed him some literature regarding a forthcoming election being held by a rival union. He returned the literature to defendant who, it is then asserted, struck him, rendering him unconscious. A witness testified in support of complainant’s version, while the defendant and his associate testified that complainant used abusive language and struck defendant first, and that defendant merely returned two or three blows in *516self-defense. On this state of the record defendant was found guilty of disorderly conduct, an offense below the grade of misdemeanor. Such an adjudication must be held to be invalid as matter of law. Since the defendant was charged with a misdemeanor, the Court of Special Sessions lacked the power or jurisdiction to convict him of an offense of lesser grade, in the absence of a plea of guilty to such offense (N. Y. City Crim. Cts. Act, § 31, subd. 9; L. 1910, ch. 659, as amd. by L. 1955, ch. 66; People v. Torraco, 12 A D 2d 964). The District Attorney so concedes in his brief. Nolan, P. J., Ughetta, Christ, ¡Pette and Brennan, JJ., concur.