Opinion
February 14, 1961
Appeal by defendant from a judgment of the Court of Special Sessions of the City of New York, Borough of Queens, rendered June 30, 1960, convicting him, after trial, of disorderly conduct, and sentencing him to serve 30 days in the City Prison or to pay a fine of $50. The fine was paid. Defendant was charged with assault in the third degree (Penal Law, § 244, subd. 1), a misdemeanor, in that on August 5, 1959, he struck one William Walls with his clenched hand. On the trial it appeared that Walls was standing with his dog on a patch of grass adjacent to the curb in front of defendant's house. Defendant's wife called out to Walls through a window, "Curb your dog." Walls replied, "Drop dead." Thereupon defendant, his wife, and his son came out of their house for further words at closer range. Walls (a 31-year-old six-footer) testified that defendant (a man of 55 described as "little") struck him on the jaw. Defendant, his wife, and his son testified that no blow was struck and that only words were exchanged. On this state of the record defendant was found guilty of disorderly conduct (an offense below the grade of misdemeanor). Judgment reversed on the law and the facts, information dismissed, and fine remitted. Since the defendant was charged with a misdemeanor, the Court of Special Sessions was without power to convict him of an offense of lesser grade, in the absence of a plea of guilty to such offense (N.Y. City Crim. Cts. Act, § 31, subd. 9; L. 1910, ch. 659, as amd. by L. 1955, ch. 66). Nolan, P.J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.