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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 10
The People &c.,
            Respondent,
        v.
Steven Repanti,
            Appellant.




          William A. Gerard, for appellant.
          Anthony R. Dellicarri, for respondent.




RIVERA, J.:
          Defendant Steven Repanti claims that he was unlawfully
convicted of attempted assault in the third degree (Penal Law §
120.00) and harassment in the second degree (Penal Law § 240.26)

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because those counts are based on the same conduct and therefore,
on the facts of his case, harassment must be treated as a lesser
included offense of attempted assault.   We disagree.
           At the time of the underlying incident, defendant,
complainant and her husband lived at the same senior community
residence in the Town of Ramapo, Rockland County.   Based on
complainant's allegations the People charged defendant by
misdemeanor information with one count of attempted assault in
the third degree (Penal Law §§ 120.00 [1], 110.00).
Approximately one year later, on the day of the nonjury trial,
the People filed a superceding prosecutor's information adding a
charge of harassment in the second degree (Penal Law § 240.26
[1]).   The People characterized the harassment count as a lesser
included offense of the assault, erroneously citing People v
Moyer (27 NY2d 252 [1970]).   The court permitted the new filing
over defendant's objection to the facial sufficiency of the
instrument.
           According to the evidence presented at trial,
complainant was ascending the staircase to her home when
defendant exited a neighbor's apartment, waited, then walked down
the same staircase and forcefully "banged into" complainant with
his shoulder.   Complainant did not suffer any physical injuries
because she fell back against her husband who was walking
directly behind her.   Defendant testified on his own behalf,
disputing that he had any physical contact with complainant or


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her husband.   During summations, counsel asserted that defendant
was overcharged, contending that the harassment count was "really
more of a lesser included" and, in any event, averred that the
weight of the evidence was insufficient to convict on either.
The prosecutor also noted that the harassment count was a lesser
included offense, and submitted to the court that defendant
should be convicted of both.
          The court convicted defendant on both the attempted
assault and second degree harassment charges.   At sentencing
defense counsel challenged the dual convictions, stating,
          "I'm a little puzzled about a conviction for
          both charges. I think it's one or the other.
          I had tended to believe the harassment would
          be the more appropriate based on the
          evidence. I don't really think he could be
          convicted of both and sentenced for both.
          But in any event I would ask the Court to
          consider his circumstances."
The court immediately sentenced defendant to a one-year term of
probation for the attempted assault and imposed a $250.00 fine on
the harassment conviction, along with a $125.00 surcharge.
          The Appellate Term affirmed, rejecting defendant's
contention that harassment in the second degree is a lesser
included offense of attempted assault in the third degree, based
on the authority of this Court's decision in People v Moyer (27
NY2d 252 [1970]) (see People v Repanti, 40 Misc 3d 131 [A] [App
Term 2013]).   A Judge of this Court granted defendant leave to
appeal, and we now affirm (22 NY3d 1043 [2013]).
          Defendant contends that the verdict is defective

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because under our prior case law he cannot be lawfully convicted
of attempted assault and harassment where, as here, the counts
are based on the same conduct -- physical contact with the
complainant -- and distinguished solely by a different intent
element.   According to defendant, in such a case harassment must
be treated as a lesser included offense, which thus bars his
conviction for the greater offense of attempted assault.     In
response, the People argue that under this Court's prior
decisions, including Moyer, harassment is not a lesser included
offense.   We agree.
           In deciding this appeal we do not write on a clean
slate.   Indeed, as both parties recognize, this Court has
previously decided the standard by which to determine what
constitutes a lesser included offense, and also held that
harassment is not a lesser included offense of assault.    Thus, we
return to well-trodden ground in addressing defendant's claims,
and based on existing case law find his arguments to be without
merit.
           To establish that a count is a lesser included offense
in accordance with CPL 1.20 (37), a defendant must establish
"that it is theoretically impossible to commit the greater
offense without at the same time committing the lesser" (People v
Glover, 57 NY2d 61, 64 [1982]).   Such determination requires the
court to compare the statutes in the abstract, without reference
to any factual particularities of the underlying prosecution


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(id.).     Thus, the defendant must show that the offense "is an
offense of lesser grade or degree and that in all circumstances,
not only in those presented in the particular case, it is
impossible to commit the greater crime without concomitantly, by
the same conduct, committing the lesser offense"    (id. at 63).
Since defendant cannot establish that in all circumstances it is
impossible to commit attempted assault without also committing
harassment, his challenge to his conviction on both these counts
fails as a matter of law.1
             Our comparison of attempted assault and harassment
establishes that these counts do not share a common intent
element.    To be guilty of attempted assault in the third degree
requires proof that defendant "engage[d] in conduct which tends
to effect the commission of [assault]," with the "intent to cause
physical injury to another" (Penal Law §§ 110, 120.00 [1]).       A
conviction for harassment requires that defendant "with intent to
harass, annoy or alarm another . . . [,] shoves, kicks or
otherwise subjects such other person to physical contact, or
attempts or threatens to do the same" (Penal Law § 240.26 [1]).
In 1970, in Moyer, a majority of this Court concluded that


     1
      Given that defendant cannot establish theoretical
impossibility, we need not consider whether under the particular
facts of his case, defendant would be able to make the additional
mandatory showing of "actual impossibility," which requires that
"there is a reasonable view of the evidence in the particular
case that would support a finding that [the defendant] committed
the lesser offense but not the greater" (see Glover, 57 NY2d at
64).

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harassment is not a lesser included offense of assault because
"an additional element or fact must be shown to be present in a
case of harassment," requiring proof of an intent to harass,
annoy or alarm, which is not a required element of an assault
count (Moyer, 27 NY2d at 254). Instead, assault requires intent
to injure, irrespective of whether the defendant also harbors an
intent to harass, annoy or alarm (compare Penal Law § 120.00 with
Penal Law § 240.26).
          It remains true today, as it did when Moyer was
decided, that as an abstract concept it is possible to intend to
annoy, harass or alarm without also intending to injure based on
conduct that causes annoyance, harassment or alarm.   Similarly,
an intent to injure through physical contact involves a purpose
of mind focused on a result more serious than that which may be
obtained by the mere action of causing annoyance or alarm.    For
example, a person's use of force to cause physical injury, such
as pushing someone to break their arm or dislocate their
shoulder, is not the same state of mind held by a person seeking
to make physical contact to annoy or bother another person.    Even
if in some cases the proof is sufficient to establish a
defendant's intent to injure and intent to annoy, harass or
alarm, the fact that there is a potential subset of cases where
it is possible to be guilty of both offenses does not overcome
the theoretical impossibility requirement that the elements align
in all cases (see Glover, 57 NY2d at 64).


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          Defendant argues that the impossibility rule does not
apply here because he was convicted of an attempted assault, not
a completed assault as in Moyer.   This is a distinction without
significance for purpose of our analysis because, as defendant
acknowledges, the question is whether attempted assault and
harassment share the same elements, which they do not.    An
attempted assault requires the intent to commit an assault, which
carries a different intent from harassment.
          Defendant seeks to further distinguish his case by
relying on this Court's decision in People v Stanfield (36 NY2d
467 [1975]) to argue that where two charges depend on the same
conduct and differ only based on the degree of culpability, the
lesser charge is a lesser included offense.   In Stanfield, the
Court held that criminally negligent homicide is a lesser
included offense of the crime of manslaughter in the second
degree (id. at 469).   Defendant argues that his case falls
squarely within what he calls the "Stanfield Rule" because he was
convicted based on the same conduct under counts that require a
different intent.
          Defendant's contention that Stanfield somehow
"clarified" this Court's prior interpretation of CPL 1.20 (37) by
creating an exception to the theoretical impossibility
requirement ignores subsequent case law and the fact that
Glover limited Stanfield.   As Glover recognized, the theoretical
impossibility requirement "is mandated by the provisions of CPL


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1.20 (37)," thus Glover correctly rejected Stanfield to the
extent the latter could be interpreted to disavow the
"theoretical impossibility" requirement in favor of reliance on
impossibility based solely on the particular facts in an
individual defendant's case (Glover, 57 NY2d at 64).
          This Court's decision in People v Green, decided the
same day as Glover, confirms that harassment is not a lesser
included offense of attempted assault.   In Green, the Court held
that it was error to deny a defendant charged with first degree
intentional assault a lesser included offense charge of assault
in the second degree, because the acts necessary to prove both
crimes are the same and there is only a difference in the degree
of culpability, namely intentional for first degree assault and
reckless for second degree (56 NY2d 427, 435 [1982]).   Here, of
course, the degree of culpability is the same as both counts
require intent on the part of the defendant -- intent to cause
physical injury in the case of attempted of assault, versus
intent to harass, annoy or alarm in the case of harassment.
          Given this understanding of what constitutes a lesser
included offense, not surprisingly, in People v Todd, decided
after Glover and Green, this Court affirmed a lower court's
refusal to charge harassment as a lesser included offense of
assault in the third degree (see 59 NY2d 694, 696 [1983], citing
Glover and Moyer).   We therefore find dispositive the authority
of Moyer, Glover, Green and Todd, and conclude that harassment is


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not a lesser included offense of attempted assault.2            Accordingly,
the order of the Appellate Term should be affirmed.
*   *       *   *   *   *   *   *    *      *   *   *   *   *     *   *   *
Order affirmed. Opinion by Judge Rivera. Chief Judge Lippman
and Judges Read, Pigott and Abdus-Salaam concur. Judges Stein
and Fahey took no part.

Decided February 17, 2015




        2
      Defendant's alternative argument, raised for the first time
at oral argument, that the verdict is repugnant because the
respective counts require a distinct mens rea is wholly
unpreserved for our consideration (see People v Carter, 7 NY3d
875, 876 [2006]; CPL § 470.05 [2]).

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