| N.Y. App. Div. | Oct 29, 1979
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered March 23, 1978, convicting him of assault in the third degree and leaving the scene of an accident, after a nonjury trial, and imposing sentence. Judgment reversed, on the law, indictment dismissed and case remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. The record lacks sufficient proof of any intent to cause physical injury, an essential element of the lesser included offense of assault in the third degree under the indictment in this case (which charged defendant with assault in the second degree). Similarly, there was insufficient proof that defendant knew that such injury had occurred when he left the scene of the incident. Defendant’s actions in driving his truck forward and to the right were more consistent with an intention of leaving the area than with any objective of injuring the complainant who was running near the left rear of the truck. Hopkins, J. P., Damiani, Cohalan and Gibbons, JJ., concur.