Since the coercive technique *305employed was a threat to inflict personal injury, the court erred when it refused to charge attempted coercion in the second degree, a misdemeanor, as a lesser included offense of attempted coercion in the first degree, a felony. As appears from sections 135.60 and 135.65 of the Penal Law, when the coercion charged consists of instilling fear that a person will suffer personal injury or property damage, the elements making up these two degrees of coercion are exactly identical. It was therefore impossible for the defendant to have committed one of these two particular crimes without having committed the other, which is precisely the definition of a "lesser included offense” (CPL 1.20, subd 37).
The verbal duplications of these two statutes notwithstanding, where there is threatened physical injury involved People v Eboli (34 NY2d 281) instructs that the prosecutor has the right to elect to proceed by way of a felony charge. While Eboli did not address the question of whether a lesser included offense was involved, it intimates the. distinction between felony and misdemeanor coercion lies in the wickedness of the threat. Here, in an effort to have indictments against his uncle and Garrido quashed, defendant apparently telephoned Dr. Feinberg, the complaining witness, and threatened to kill him or have him killed. Despite this obviously reprehensible language, the impact it in fact had was a matter for the jury to assess after considering all of the circumstances in the case. In short, we conclude the question of whether the alleged threat lacked the requisite heinousness was for the jury to resolve, and if it so found then a misdemeanor conviction only would have been in order.
Accordingly, we vote to reverse the instant conviction and to remand for a new trial.
Kupferman, J. P., and Lane, J., concur with Birns, J.; Capozzoli and Yesawich, JJ., dissent in an opinion by Yesawich, J.
Judgment, Supreme Court, Bronx County, rendered on February 13, 1975, affirmed. The case is remitted to the Supreme Court, Bronx County, for further proceedings pursuant to CPL 460.50 (subd 5).