People v. Maybee

Mar 10, 1989
Versions:148 A.D.2d 923
540 N.Y.S.2d 212
1989 N.Y. App. Div. LEXIS 2455

Judgment unanimously affirmed. Memorandum: The trial court did not err in declining defendant’s request to charge third degree assault (Penal Law § 120.00 [2] [reckless conduct], [3] [criminally negligent conduct]) as lesser included offenses of second degree intentional assault (Penal Law § 120.05 [1]). Viewing the evidence in the light most favorable to defendant (see, People v Greer, 42 NY2d 170), we see nothing in the record which would support a finding that defendant acted other than intentionally when he struck the victim (see, CPL 300.50 [2]; People v Green, 56 NY2d 427, 430, 434, rearg denied 57 NY2d 775; People v Johnson, 110 AD2d 1057, lv denied 66 NY2d 615). (Appeal from judgment of Genesee County Court, Morton, J. — assault, second degree; criminal mischief, fourth degree.) Present— Dillon, P. J., Boomer, Green, Pine and Davis, JJ.