Opinion
October 15, 1991
Appeal from the County Court, Rockland County (Kelly, J.).
Ordered that the judgment is affirmed.
Viewing the evidence adduced at trial in a light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The trial court's refusal to grant the defendant's request to submit to the jury the charge of assault in the third degree as a lesser included offense of assault in the second degree, or felony assault, as defined in Penal Law § 120.05 (6), was proper. Assault in the third degree is not a lesser included offense of felony assault (People v. Green, 56 N.Y.2d 427, 431; People v Miguel, 53 N.Y.2d 920, 923). Mangano, P.J., Thompson, Bracken and Copertino, JJ., concur.