People v. Smith

Dec 30, 1996
Versions:234 A.D.2d 997
651 N.Y.S.2d 830
1996 N.Y. App. Div. LEXIS 13813

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of two counts of reckless endangerment in the first degree. He contends that the court erred in denying his request to charge reckless endangerment in the second degree as a lesser included offense of both counts. We disagree. Although it is theoretically impossible to commit reckless endangerment in the first degree without also committing reckless endangerment in the second degree, there is no reasonable view of the evidence that defendant committed the lesser offense but not the greater (cf., CPL 300.50 [1]; People v Glover, 57 NY2d 61, 63). The evidence establishes that defendant shot once in the direction of a public street and that the bullet grazed the forehead of one victim some 10 to 12 feet away and struck a stopped vehicle that was occupied by another victim. There is no reasonable view of the evidence that defendant’s conduct created a substantial risk of serious physical injury to each victim but did not create a grave risk of death. (Appeal from Judgment of Monroe County Court, Bristol, J.—Reckless Endangerment, 1st Degree.) Present—Den-man, P. J., Green, Fallon, Doerr and Balio, JJ.