In People v. Strawder (78 AD2d 810, 433 NYS2d 112 [1st Dept 1980]), the trial court erroneously charged and submitted to the jury the offense of assault in the second degree as a lesser included offense of the crime of attempted robbery in the first degree charged in the indictment.
The First Department reversed defendant's conviction for assault in the second degree and dismissed the indictment on the ground that it was jurisdictionally defective since that crime required an intent to cause injury which is not a necessary element to a robbery charge, and "no form of intentional assault was charged in the indictment" (id. at 811).
As the Court held:
"The People, with commendable candor, concede that the conviction must be reversed and the indictment must be dismissed because there is a jurisdictional bar to the submission of the assault count under that section of the Penal Law which requires intent, since no form of intentional assault was charged in the indictment. The trial court charged and submitted as a lesser included offense assault in the second degree, which the court charged required proof of 'intent to cause serious physical injury to another person'. This is an element not required to establish the greater offense of robbery in the first degree (Penal Law, § 160.15, subd 1). It is not necessary to prove 'intent to cause physical injury' in order to prove the injury element of robbery in the first degree which requires only that the People establish that defendant caused a nonparticipant in the crime to suffer 'serious physical injury.' (Penal Law, § 160.15, subd 1; People v. Newton, 61 AD2d 1051, 1052, 403 NYS2d 277, affd, 46 NY2d 877, 387 NE2d 612, 414 NYS2d 680).
An 'intent to cause serious physical injury' is not an element of any count in the indictment. Hence it could not be an element of a lesser included offense of any charge in the indictment ... There was a jurisdictional bar to submitting the intent felony." (Id.; see also People v. Crute, 236 AD2d 208, 653 NYS2d 549 [1st Dept 1997]; People v. Ruckdeschel, 51 AD2d 861, 380 NYS2d 163 [4th Dept 1976]; People v. Ricco, 11 AD3d 343, 784 NYS2d 28 [1st Dept 2004].)