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PEOPLE v. BARTKOW

96 N.Y.2d 770 (2001)

749 N.E.2d 158

725 N.Y.S.2d 589

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN BARTKOW, Appellant.

Court of Appeals of the State of New York.

Decided February 20, 2001.

Attorney(s) appearing for the Case

Legal Aid Society of Nassau County, Hempstead (Christopher M. Cevasco, Matthew Muraskin and Kent V. Moston of counsel), for appellant.

Denis Dillon, District Attorney of Nassau County, Mineola (Andrea M. DiGregorio, Daniel T. Butler and Peter A. Weinstein of counsel), for respondent.

Before: Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY and GRAFFEO concur; Judge ROSENBLATT dissents in an opinion.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Term should be affirmed.

The issue is whether harassment in the second degree is a lesser included offense of menacing in the second degree. We conclude that it is not.

On the morning of June 13, 1997, a mental health caseworker in the course of his duties visited the home of defendant. The defendant opened the door, holding an aluminum baseball bat. He cursed and swung the bat,...

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