Opinion
February 6, 1984
Appeal by defendant from a judgment of the County Court, Nassau County (Murray, J.), rendered October 19, 1982, convicting him of burglary in the third degree, attempted assault in the second degree, and resisting arrest, upon a jury verdict, and imposing sentence. Judgment affirmed. A review of the record indicates sufficient evidence in both quantity and quality to support the jury's verdict ( People v Contes, 60 N.Y.2d 620; People v Gilligan, 42 N.Y.2d 969; People v Coe, 99 A.D.2d 516). Nor is resisting arrest (Penal Law, § 205.30) a lesser included offense (CPL 1.20, subd 37) of attempted assault in the second degree (Penal Law, § 110.00, 120.05 Penal, subd 3), as the element of intentionally preventing an authorized arrest necessary to establish in the crime of resisting arrest, is not necessary to establish the crime of attempted assault in the second degree (cf. People v Glover, 57 N.Y.2d 61; People v Acevedo, 40 N.Y.2d 701, 706; People v Ivisic, 95 A.D.2d 307). Consequently, that count is not subject to dismissal pursuant to CPL 300.40 (subd 3, par [b]) (see People v Acevedo, supra, p. 706). To the extent that People v Early ( 85 A.D.2d 752, 753), and People v Lett ( 67 A.D.2d 1077) are to the contrary, we decline to follow them. We further note that modification of the sentence in the interest of justice is not warranted (see People v Suitte, 90 A.D.2d 80, 85-86). Titone, J.P., Lazer, Thompson and O'Connor, JJ., concur.