        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

617
KA 10-01579
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES KURKOWSKI, DEFENDANT-APPELLANT.


THOMAS J. EOANNOU, BUFFALO (JEREMY D. SCHWARTZ OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L.
CIANCIOSA OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered June 22, 2010. The judgment convicted
defendant, upon a nonjury verdict, of assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter is remitted to Erie County Court
for proceedings pursuant to CPL 460.50 (5).

     Memorandum: On appeal from a judgment convicting him upon a
nonjury verdict of assault in the second degree (Penal Law § 120.05
[4] [reckless assault]), defendant contends that County Court erred in
considering assault in the second degree as a lesser included offense
of assault in the first degree (§ 120.10 [1] [intentional assault]).
We reject that contention. Inasmuch as “the result and underlying
conduct of [reckless assault] and [intentional assault are] identical
and the only distinction between the two crimes [is] the mental state
of the defendant, it is, within the meaning of CPL 1.20 [37] and CPL
300.50, impossible to commit the latter without concomitantly
committing the former” (People v Green, 56 NY2d 427, 432, rearg denied
57 NY2d 775). Thus, contrary to defendant’s further contentions, the
conviction is not jurisdictionally defective and defense counsel was
not ineffective in failing to object to the court’s consideration of
the lesser included offense. Although we agree with defendant that
the court failed to comply with CPL 320.20 (5) because it did not
notify the parties that it intended to consider a lesser included
offense until after summations, we conclude that such error is
harmless (see People v Harvey, 249 AD2d 951; People v Kloska, 191 AD2d
587; see generally People v Crimmins, 36 NY2d 230, 241-242). The
theory of the defense was that defendant was not the perpetrator, a
theory that applies equally to the offenses of assault in the first
degree and assault in the second degree (see Harvey, 249 AD2d 951;
People v Peterkin, 195 AD2d 1015, lv denied 82 NY2d 758). Further,
                                 -2-                           617
                                                         KA 10-01579

the court offered defense counsel the opportunity to reopen summations
for the purpose of addressing the lesser included offense, thus
alleviating any possible prejudice to defendant (see Harvey, 249 AD2d
951; Peterkin, 195 AD2d 1015).

     Finally, we conclude that the sentence is not unduly harsh or
severe, particularly in light of the serious nature of defendant’s
conduct and the severe and permanent injuries sustained by the victim.




Entered:   April 29, 2011                      Patricia L. Morgan
                                               Clerk of the Court
