Appellate Division of the Supreme Court of New York, 1985

People v. Fasano

Appellate Division of the Supreme Court of New York · Decided January 29, 1985

107 A.D.2d 1052; 486 N.Y.S.2d 109; 1985 N.Y. App. Div. LEXIS 42872

Cases that cite this one

11 later published cases cite this decision.

People v. Hooper (Appellate Division of the Supreme Court of New York 2025)
ARCHIBALD, JONATHAN, PEOPLE v (Appellate Division of the Supreme Court of New York 2017)
People v. Archibald (Appellate Division of the Supreme Court of New York 2017)
People v. Archibald (Appellate Division of the Supreme Court of New York 2017)
SMITH, KENNETH H., PEOPLE v (Appellate Division of the Supreme Court of New York 2014)
People v. Smith (Appellate Division of the Supreme Court of New York 2014)
People v. Smith (Appellate Division of the Supreme Court of New York 2014)
People v. Pilgrim (Appellate Division of the Supreme Court of New York 1998)
People v. Johnson (Appellate Division of the Supreme Court of New York 1990)
People v. Scahill (Appellate Division of the Supreme Court of New York 1990)
People v. Mandel (Appellate Division of the Supreme Court of New York 1988)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

— Judgment unanimously reversed, on the law and facts, and new trial granted. Memorandum: The jury convicted defendant of assault in the second degree (Penal Law, § 120.05, subd 2) as charged in the indictment. At trial, defendant requested that assault in the third degree, under subdivision 3 of section 120.00 of the Penal Law, be charged as a lesser included offense. The trial court erroneously denied the request, and we reverse.

The evidence demonstrated that defendant, piqued by his then-seven-year-old son’s behavior, picked up the child by his arms and shoulders and pounded him feet first against the floor several times. As a result the child suffered a fracture of the left tibia.

The District Attorney concedes on appeal that it is theoretically impossible to commit assault in the second degree under subdivision 2 of section 120.05 of the Penal Law without at the same time committing assault in the third degree under subdivision 1 of section 120.00 of the Penal Law (see People v Fugaro, 96 AD2d 659; People v Mena, 70 AD2d 550) and subdivision 3 of that section (see People v Green, 56 NY2d 427, mot for rearg den 57 NY2d 775; People v Stanfield, 36 NY2d 467), and that, therefore, assault in the third degree is a lesser included offense (CPL 1.20, subd 37). It is argued, however, that there is no *1053reasonable view of the evidence that would support a finding that the defendant committed the lesser offense but did not commit the greater offense (see People v Glover, 57 NY2d 61). We disagree. On this record, the jury could reasonably have found that defendant was guilty of assault in the third degree under any one of the three subdivisions of section 120.00 of the Penal Law (see, e.g., People v Hall, 56 NY2d 547; People v Mena, supra; see, also, People v Green, supra).

We have reviewed the other issues raised by defendant on appeal and find them to be without merit. (Appeal from judgment of Onondaga County Court, Gorman, J. — assault, second degree.) Present — Dillon, P. J., Boomer, Green, O’Donnell and Schnepp, JJ.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.