Majority
p. 1056The People of the State of New York, Respondent, v Donald Bennett, Appellant. [614 NYS2d 346]
—Judgment unanimously affirmed. Memorandum: Supreme Court did not err in refusing to charge assault in the third degree (Penal Law § 120.00 [3]) as a lesser included offense of assault in the first degree (Penal Law § 120.10 [1]). There is no reasonable view of the evidence from which the jury could conclude that defendant committed the lesser but not the greater offense (see, People v Glover, 57 NY2d 61 , 63). In any event, defendant was convicted of the higher offense of assault in the first degree and acquitted of the two lower offenses of assault in the
p. 1057
second degree (Penal Law § 120.05 [2], [4]) charged as lesser included offenses. Were there error in failing to charge the lesser offense of assault in the third degree it, would be harmless (see, People v Green, 56 NY2d 427 , 435). (Appeal from Judgment of Supreme Court, Monroe County, Doyle, J.—Assault, 1st Degree.) Present—Green, J. P., Balio, Fallon, Callahan and Davis, JJ.
Cases cited
- People v. Glover 57 NY2d 61 at 63 p. 1056
- People v. Green 56 NY2d 427 at 435 p. 1057