Opinion
November 10, 1986
Appeal from the Supreme Court, Monroe County, Reed, J.
Present — Dillon, P.J., Denman, Green, Pine and Balio, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment of conviction for two counts of assault in the second degree (Penal Law § 120.05, [4]), defendant's primary claim is that an oral statement she gave the police should have been suppressed because the police unlawfully entered her home in violation of Payton v New York ( 445 U.S. 573). Our review of the evidence adduced at the suppression hearing, however, reveals that the hearing court properly concluded that the police entry was consensual.
The trial court also properly refused defendant's request to charge assault in the third degree as a lesser included offense of assault in the first degree as charged in the indictment because there was no reasonable view of the evidence that the victim of the assault suffered only physical, but not serious physical injury (People v Glover, 57 N.Y.2d 61; People v Green, 56 N.Y.2d 427). On the contrary, the evidence established that the victim suffered third degree burns over a third of his body resulting in serious and protracted disfigurement (Penal Law § 10.00). Defendant's remaining claims are without merit.