Opinion
March 19, 1991
Appeal from the Supreme Court, New York County (Alfred Kleiman, J.).
Defendant was found guilty of assault in the first degree on evidence that he struck Luis Nieves in the left arm with a machete, slicing down into the bone, while repeatedly screaming, "I'm going to kill you."
Defendant was not entitled to a charge on assault in the second or third degrees as lesser included offenses of assault in the first degree, as no reasonable view of the evidence would support a finding that defendant committed the lesser offenses but not the greater (CPL 300.50; People v Glover, 57 N.Y.2d 61). In this regard, defendant does not contest that the complainant suffered a serious physical injury, but argues nonetheless that the jury may have found that defendant intended only to cause physical injury, or was negligent. We believe that the evidence, viewed rationally, ruled out anything less than the intent to cause serious physical injury.
The court did not abuse its discretion by denying a hearing on defendant's motion to set aside the verdict. Although defense counsel raised the issue that a juror deliberately perjured herself by withholding from the court information as to her prior arrest and swearing that she had never been arrested, the motion papers were unsupported by sworn allegations of facts as required by statute. (CPL 330.40 [e].)
Concur — Carro, J.P., Milonas, Asch and Kassal, JJ.