Appellate Division, Fourth Department
Ineffective Assistance of Counsel
Lesser Included Offense
People v. Kurkowski
Appealed from Erie County Court
Background: The defendant was charged with assault in the first degree. He was convicted at a bench trial of assault in the second degree as a lesser included offense. On appeal he contended that the judge improperly considered assault in the second degree (reckless assault) as a lesser included offense. Additionally, the defense argued that the judge failed to notify the parties that he intended to consider a lesser included offense until after summations.
Ruling: Conviction is affirmed. The two crimes are identical except for the mental state of the defendant, thus it is a proper lesser included offense. While the judge should have notified counsel earlier of the lesser charge being considered, the error was harmless. The theory of the case — that the defendant was not the perpetrator — remained the same for both higher and lower charge, and the judge offered defense counsel the opportunity to reopen summations so as to address the lesser charge.
Jeremy D. Schwartz for the defendant; and Michelle L. Cianciosa for Erie County District Attorney’s Office