Opinion
July 13, 1990
Appeal from the Livingston County Court, Houston, J.
Present — Doerr, J.P., Boomer, Lawton, Davis and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's primary contention on appeal is that the trial court erred in refusing to charge assault in the third degree (Penal Law § 120.00) as a lesser included offense of assault in the second degree (Penal Law § 120.05). Assault in the third degree (Penal Law § 120.00) can theoretically be a lesser included offense of assault in the second degree (Penal Law § 120.05; see, People v. Green, 56 N.Y.2d 427, 435, rearg denied 57 N.Y.2d 775; People v. Collins, 86 A.D.2d 616; cf., People ex rel. Gray v Tekben, 57 N.Y.2d 651, 653). From our review of the record, however, there is no reasonable view of the evidence that would support a finding that defendant committed the lesser but not the greater offense. Defendant's request to charge was therefore properly refused (see, People v. Glover, 57 N.Y.2d 61, 63; People v. Johnson, 158 A.D.2d 939).
Defendant also contends that prosecutorial misconduct on summation requires reversal. Since no objection was made to the alleged impropriety, this issue has not been preserved for our review (CPL 470.05).