PEOPLE EX REL. GRAY v. TEKBEN

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.