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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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