People v. Walker

Judgment unanimously modified, on the law and the facts and, as modified, affirmed, in accordance with the following memorandum: Defendant was convicted after a jury trial of two counts of assault in the second degree (Penal Law, § 120.05, subd 3) (causing physical injury to a peace officer with intent to prevent him from performing a lawful duty); resisting arrest (Penal Law, § 205.30) (intentionally preventing or attempting to prevent a peace officer from effecting an authorized arrest) and obstructing governmental administration (Penal Law, § 195.05) (intentionally preventing or attempting to prevent a public servant from performing an official function by means of physical force or interference). Defendant contends and the People concede that resisting arrest is a lesser included offense of assault in the second degree under subdivision 3 of section 120.05 (see People v Lett, 67 AD2d 1077, and cases cited therein) and therefore that count should have been dismissed pursuant to CPL 300.40 (subd 3, par [b]). Defendant’s conviction of obstructing governmental administration must also be dismissed as a lesser included count under the facts presented here. The evidence established that *991defendant interfered with and caused physical injury to two police officers while they were investigating a report of a “break-in.” It was “impossible to commit a particular crime” (assault in the second degree under subd 3) “without concomitantly committing, by the same conduct, another offense of a lesser grade or degree” (obstructing governmental administration). It is thus a “ ‘lesser included offense’ ” (CPL 1.20, subd 37) and should have- been dismissed. (See, generally, People v Perez, 45 NY2d 204.) We have considered the other arguments raised by defendant and find them to be without merit. (Appeal from judgment of Erie County Court, La Mendola, J. — assault, second degree, and another charge.) Present — Cardamone, J. P., Callahan, Doerr, Denman and Schnepp, JJ.