Citation Codes Equivalent Citations citation codes Attorney(S) Mario Merola, District Attorney ( Alan D. Marrus of counsel), for appellant. Malvina Nathanson and William E. Hellerstein for respondent. See more information ... Smart Summary Please sign up to generate summary. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES GRAY, Respondent, v. ERDOGAN TEKBEN, as Director, Mid-Hudson Psychiatric Institute, Appellant. On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), order, insofar as appealed from, affirmed, without costs. The crime of assault in the third degree under subdivision 1 of section 120.00 of the Penal Law is not a lesser included offense of assault in the second degree under subdivision 3 of section 120.05 of the Penal Law inasmuch as it is possible to commit the latter without possessing the intent to injury which is the gravamen of the former (cf. People v Glover, 57 N.Y.2d 61). Petitioner's detention is premised on an invalid verdict and is, therefore, unlawful. Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER. Taking no part: Judge GABRIELLI.