81 A.D.2d 674 | N.Y. App. Div. | 1981
— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 26, 1979, convicting him of attempted murder in the second degree, attempted robbery in the first degree (four counts) and assault in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of assault in the first degree, vacating the sentence imposed thereon, and dismissing said count. As so modified, judgment affirmed. In a nine-count indictment the defendant was charged with various crimes he was alleged to have committed while acting in concert with another person, who was not apprehended, in the “hold up” of a pharmacy. Both perpetrators were armed, and the pharmacist and the defendant were both seriously injured; the defendant’s injury resulted in permanent paralysis of the lower portion of his body. At trial, testimony regarding the occurrence was given by the pharmacist, and by an employee and a customer who were present at the time. We reverse the defendant’s conviction of assault in the first degree because we find under the facts of this case that that crime was committed in such a manner as to render it a lesser included count within attempted murder in the second degree. The evidence established that defendant fired at the pharmacist while face to face with him, striking him once in the face. (At the same time, the victim fired the gun he was licensed to carry at the defendant and struck him.) Generally, “An assault in any of its degrees * * * is not a necessary legal element in a charge of [common law] murder” (People v McDonald, 159 NY 309, 314); hence the question is one always to