Opinion
May 27, 1994
Appeal from the Supreme Court, Monroe County, Doyle, J.
Present — Green, J.P., Balio, Fallon, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Supreme Court did not err in refusing to charge assault in the third degree (Penal Law § 120.00) as a lesser included offense of assault in the first degree (Penal Law § 120.10). 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 N.Y.2d 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 second degree (Penal Law § 120.05, [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 N.Y.2d 427, 435).