Opinion
May 11, 1967
Appeal from the Cayuga County Court.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Judgment unanimously modified by reducing the degree of crime for which appellant is convicted on the second count of the indictment from assault, second degree, to assault, third degree, and suspending sentence on said count and, as so modified the judgment is affirmed. Memorandum: We find no proof in the record that justified the trial court in submitting to the jury the count of the indictment charging the defendant with having committed assault second degree — an assault with intent to commit a felony (Penal Law, § 242, subd. 5). While there was proof that appellant carried the girl out of her home any finding by the jury that this was done, as suggested by the court, with intent to commit rape or kidnapping would be based on surmise or speculation. This issue obviously troubled the jury and the original error was compounded when they returned for additional instructions and were told that the crime was "assault with intent to commit a crime" and not a felony. Inasmuch as the proof would only sustain a finding of guilt of assault, third degree — that is an assault and battery (3 N.Y. Jur., Assault and Battery, § 1) — we modify the judgment accordingly (Code Crim. Pro. § 543, subd. 2; People v. Monaco, 14 N.Y.2d 43).