(dissenting). This appellant and three others were indicted for three separate crimes: (1) attempted robbery in the first degree, (2) attempted grand larceny in the first degree, and (3) assault in the second degree with intent to commit the crimes of robbery and grand larceny, perpetrated in the nighttime of May 10,1951 (at 4:00 a.m.).
It is undisputed that the defendants had been drinking considerably that night; this, the trial court charged, the jury may consider “ if you wish ”. On the sentence, it might be noted, one of the defendants was committed to Bellevue Hospital “ for a mental examination ”. It is also undisputed that appellant remained in the automobile, while the other three defendants approached complainant Gilligan and asked: “ Is this house here 64? ” Two of them lived at 64 — 108th Street. There is ample evidence that the three defendants other than appellant assaulted Gilligan. Whether or not there was attempted robbery or grand larceny is not so clear. In this respect, the jury might well have found that complainant’s testimony in the Magistrate’s Court conflicted with his testimony at the trial, thus affecting his credibility. The police, who claim to have observed much of what happened, saw the three defendants assaulting Gilligan, but did not corroborate the latter’s trial testimony as to the attempt to extract the wallet from his pocket. Gilligan conceded that no threat and no demand for money was made.
After a lengthy trial, the court submitted to the jury only the crime of attempted robbery, without dismissing the other counts. In our judgment, this was error, and contrary to a settled practice that has prevailed in our criminal courts for a great many years. Counsel for defendants duly, clearly and unequivocally excepted.
We disagree with the conclusion of the majority that the crime of assault, second degree (here, assault with intent to rob and steal), is identical with the attempted robbery charge. In *568our view, the assault and grand larceny charges are lesser crimes included in the attempted robbery charge, within the meaning of section 445 of the Code of Criminal Procedure.
Beduced to its simplest terms, and leaving out all elements not here pertinent, attempted robbery embraces (1) an attempted “ unlawful taking ” [attempted grand larceny] (2) “ by force ” [assault]. Without the force or assault, we have merely attempted grand larceny. Without an attempted unlawful taking, we have only assault [with intent].
Thus, upon the whole case, the jury would have been clearly warranted in convicting defendants of assault with intent to commit robbery. This, however, is not necessarily tantamount to an attempt to commit robbery. “ Attempt to commit a crime ” is defined in section 2 of the Penal Law thus: “ An act, done with intent to commit a crime, and tending but failing to effect its commission ” (emphasis supplied). It necessarily follows that more than mere “ intent ” to commit a crime is necessary to constitute an “ attempt ” to do so (People v. Rizzo, 246 N. Y. 334; People v. Werblow, 241 N. Y. 55; People v. Sullivan, 173 N. Y. 122; People v. Ditchik, 288 N. Y. 95; People v. Kane, 161 N. Y. 380, 389; People v. Conrad, 102 App. Div. 566, affd. 182 N. Y. 529).
Since there is a difference between intent and attempt, its resolution was for the jury, which could conceivably have found, on this record, that the defendants assaulted Gilligan with “ intent ” to rob him, but that since their acts did not “ carry the project forward within dangerous proximity to the criminal end to be attained ” (People v. Werblow, supra, 241 N. Y., at p. 61), they did not reach the stage of an “ attempt ” to rob. Indeed, the District Attorney, on appellant’s motion for reargument in the Appellate Division, frankly “ conceded that the evidence would have warranted the jury in finding the defendant guilty solely on the Assault count, if they had been permitted by the trial court to render such a verdict ”. However, the Appellate Division erroneously held that ‘ ‘ here there was no possible view of the facts that would justify any other verdict except a conviction or acquittal of attempted robbery, first degree ”,
The jury was not obliged to believe all that G-illigan said. Their power of rejection is exceedingly broad. In People v. *569Rytel (284 N. Y. 242, 245) Chief Judge Lehman, writing for the court, said: “ The power of a jury in a criminal case to reject, though unreasonably, evidence which is uncontradicted and unimpeached, and to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence, cannot be challenged in an appellate court.” (See, also, People v. Seiler, 246 N. Y. 262, 267.) Every essential element of a crime presents a question of fact for the jury. “ No matter how conclusive the evidence * * * and assuming that it was wholly uncontradicted and that the inferences all pointed one way, each of the three fundamental facts was for the jury to pass upon, for if the court could take away one from them it could take away all, and thus direct a verdict, which is never allowed in a criminal case.” (People v. Walker, 198 N. Y. 329, 334.) (Code Crim. Pro., §§ 419, 420.) And, as noted by the majority, we have repeatedly held that if, upon any aspect of the facts, a defendant may properly be found guilty of an included crime, the trial judge must submit such lesser offense, no matter how strongly the evidence points to guilt as to the greater offense.
Consequently, the trial court should have granted appellant’s request to charge on assault, second degree, as well as attempted grand larceny in the first degree. His stated reason for charging attempted robbery only was “ in order that you may deliberate upon this [case] more easily ”. A jury’s duty may not be made easier by prejudicing a defendant’s rights. By this rather unusual ruling, he unwittingly made the jury’s path easy to conviction for the only crime submitted to them. He also instructed them that it is for them “ to determine what is the truth in this case; what is possible; what is likely ”; he later charged that the law “ has placed in your hands as jurors in a criminal case the exclusive right to determine the innocence or guilt of the defendants on trial ” (emphasis supplied). Yet, because he was convinced of the defendants’ guilt of attempted robbery, he declined to permit them to pass on the lesser included crimes. Moreover, had the request as to the assault count been granted, a further charge would then have been required on assault, third degree (simple assault), which offense, even the majority concede, should have been charged here if appellant’s attorney had requested it.
*570A realistic view of the situation created by the trial court’s refusal to charge all three counts, thereby requiring the jury either to convict of attempted robbery, first degree, or to acquit, compels us to conclude that the rights of this defendant, who never left the automobile in which he was sitting, were seriously prejudiced. Although the jury might have had doubts as to his guilt of the attempted robbery charge, their reluctance to acquit him altogether may nevertheless have led to an improper conviction.
The Appellate Division, by Bastow, J., who granted permission to appeal, held that while the trial court should have made a clearcut disposition of the matter, “ the refusal to submit the two counts did not constitute reversible error ”, and that “ the substantial rights of the appellant were not affected ” (emphasis supplied). The District Attorney asks us to affirm under section 542 of the Code of Criminal Procedure. In our view, substantial and reversible error was committed, which may not be overlooked.
The judgment appealed from should be reversed and a new trial ordered.
Desmond, Dye and Van Voobhis, JJ., concur with Fuld, J.; Fboessel, J., dissents in an opinion in which Conway, Ch. J., and Bubke, J., concur.
Judgment affirmed.