People v. Green

OPINION OF THE COURT

Meyer, J.

A crime which as defined by the Penal Law includes as an element defendant’s mental state can be a lesser included offense of a crime the definition of which requires the same act but a higher mental state, but cannot be a lesser included offense of a crime in the definition of which mental state plays no part. It was, therefore, error for the trial court to refuse defendant’s request that assault in the second degree be charged under an indictment charging assault in the first degree. The order of the Appellate Division should, therefore, be reversed and a new…