Opinion
March 1, 1982
Appeal by defendant from a judgment of the Supreme Court, Kings County (Bonomo, J.), rendered February 10, 1981, convicting him of assault in the second degree, after a nonjury trial, and imposing sentence. Judgment modified, on the law, by reducing defendant's conviction to one of assault in the third degree and vacating the sentence imposed. As so modified, judgment affirmed and case remitted to the Supreme Court, Kings County, for the imposition of sentence and for further proceedings pursuant to CPL 460.50 (subd 5). Defendant became involved in a fistfight between his codefendant and the complainant. Defendant did not know that his codefendant possessed a knife and intended to use it. The codefendant stabbed the complainant, causing a serious injury. Defendant never saw the knife. On these facts, defendant's conviction of assault in the second degree (Penal Law, § 120.05) cannot stand. While it was proven beyond a reasonable doubt that defendant intended to cause physical injury to the complainant, it was not proven beyond a reasonable doubt that he caused such injury by means of a deadly weapon or a dangerous instrument. He did not have the same intent or purpose of his codefendant and, therefore, cannot be responsible for the codefendant's actions (see People v. La Belle, 18 N.Y.2d 405). Since defendant did not cause injury with the knife or know that the codefendant possessed the knife, he cannot be found guilty of assault in the second degree. However, since it was proven beyond a reasonable doubt that defendant intended to cause physical injury to the complainant and that he did cause such injury during the course of the fistfight, his guilt of assault in the third degree was established. The matter must be remitted for the resentencing of defendant on the lesser offense. Titone, J.P., Mangano, Gibbons and Thompson, JJ., concur.