People v. Richardson

May 11, 1995
Versions:215 A.D.2d 222
626 N.Y.S.2d 480
1995 N.Y. App. Div. LEXIS 5037

Judgment, Supreme Court, Bronx County (John Collins, J.), rendered May 27, 1992, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to 6 months *223of incarceration and 4Vá years of probation, unanimously affirmed.

Defendant’s claim regarding the court’s submission of the lesser included charge of assault in the second degree is unpreserved for review (People v Safer, 201 AD2d 323, Iv denied 83 NY2d 858), and we decline to review it in the interest of justice. If we were to review it, we would find that even if, as defendant contends, the victim’s injuries constitute "serious physical injury” (Penal Law § 120.05 [1]), the court did not err in submitting the charge since it is reasonably possible that the jury could have found that defendant did not intend to cause "serious physical injury” when he struck the victim with his car, after missing his intended target (People v Hall, 56 NY2d 547).

Defendant’s argument regarding an erroneous reasonable doubt charge which the trial court gave to the jury during its Allen charge (People v Antommarchi, 80 NY2d 247, 251-252) is similarly unpreserved (People v Dixon, 211 AD2d 455, 456), as is his purported Rosario claim regarding the court’s failure to allow him to review documents used by the officer to refresh his recollection (People v Torres, 213 AD2d 359, 360), and we decline to reach these issues in the interest of justice.

We have considered defendant’s remaining claim and find it to be without merit. Concur—Ross, J. P., Nardelli, Williams, Tom and Mazzarelli, JJ.