At page 1003 Denial of assault in the third degree charge1 citing caseThe trial court properly denied the defendant’s request to charge assault in the third degree (see Penal Law § 120.00 [1])
- People v. Rodriguez, 73 A.D.3d 815 (N.Y. App. Div. 2d Dep't 2010).publishedViewing the evidence in the light most favorable to the defendant, there is no reasonable view of the evidence that would support a finding that he assaulted the victims but did not use a deadly weapon or dangerous instrument (see People v…
At page 1004 Determining appropriate charges and sufficiency of evidence1 citing caseas a lesser-included offense of assault in the second degree (see Penal Law § 120.05 [1]). Contrary to the defendant’s contention, viewing the evidence in the…
- People v. Diaz, 71 A.D.3d 1158 (N.Y. App. Div. 2d Dep't 2010).publishedThe Supreme Court’s charge improperly limited the application of the defense of justification to those circumstances in which the use of deadly physical force would be justified (see Penal Law § 35.15 [2]; People v Ogodor, 207 AD2d 461, 46…
v.
Jason Figueroa
The trial court properly denied the defendant’s request to charge assault in the third degree (see Penal Law § 120.00 [1])[*1004] as a lesser-included offense of assault in the second degree (see Penal Law § 120.05 [1]). Contrary to the defendant’s contention, viewing the evidence in the light most favorable to him (see People v Randolph, 81 NY2d 868, 869 [1993]; People v Martin, 59 NY2d 704, 705 [1983]), no reasonable view of the evidence supported a finding that the injury he caused was anything less than a serious physical injury (see People v Vasquez, 25 AD3d 465, 466 [2006]; Penal Law § 10.00 [9], [10]).
The trial court’s charge properly limited the application of the defense of justification to those circumstances in which the use of deadly physical force would be justified (see Penal Law § 35.15 [2]). Contrary to the defendant’s contention, viewing the evidence in the light most favorable to him (see People v McManus, 67 NY2d 541, 549 [1986]), no reasonable view of the evidence supported a finding that the force he used was anything less than deadly physical force (see People v Hyc, 240 AD2d 431, 432 [1997]; People v McCabe, 237 AD2d 380, 380-381 [1997]; People v Samuels, 198 AD2d 384 [1993]; Penal Law § 10.00 [11]; § 35.15 [1]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant’s remaining contentions are unpreserved for appellate review (see CPL 470.05 [2]) and, in any event, are without merit. Rivera, J.P., Dillon, Covello and McCarthy, JJ., concur.