The appellant was arraigned before a city magistrate on a complaint charging him with assault in the third degree, in that he struck the complainant in the face with his clenched fist.
. At the close of the People’s case the magistrate, without taking a new complaint, announced that the charge was reduced to disorderly conduct, to which reduction the defendant objected and excepted.
There is no merit in the appellant’s contention that the magistrate had no power to try the defendant on a charge of disorderly conduct where the facts might also justify a charge of assault in the 'third degree. (People v. Grote, 153 N. Y. Supp. 631; affd., 170 App. Div. 898; People v. Solomon, 125 id. 429.)
We think that the better procedure would have been followed if the magistrate had taken a new complaint for disorderly conduct and had tried the defendant on that new complaint; but in view of the fact that the charge of assault in .the third degree as well as that of disorderly conduct was amply proven against the defendant, he cannot be heard to complain because he was tried and convicted on the lesser offense. This is so, particularly in view of the fact that the substantial rights of the defendant have not been prejudiced and that it is the duty of this court to give judgment “ without regard to technical errors or defects which have not prejudiced the substantial rights of the defendant.” (Code Crim. Proc. § 764.)
Judgment affirmed.
All concur; present, Kernochan, P. J., Fetherston and Herbert, JJ.