Opinion
2001-03616
Argued November 22, 2002.
December 16, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered April 20, 2001, convicting her of assault in the second degree and assault in the third degree, after a nonjury trial, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Josette Simmons-McGhee of counsel), for respondent.
Before: GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant's claim that her conviction for assault in the second degree is not supported by evidence legally sufficient to establish her intent to cause serious physical injury is not preserved for appellate review, because she failed to raise this issue with specificity in her motion for a trial order of dismissal (see CPL 470.05; People v. Polk, 284 A.D.2d 416; People v. Wells, 272 A.D.2d 562; Matter of Marcel F., 233 A.D.2d 442).
In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's intent to cause serious physical injury beyond a reasonable doubt and to sustain the conviction for assault in the second degree (see Matter of Patrick W., 166 A.D.2d 652; see generally People v. Bracey, 41 N.Y.2d 296; People v. Douglas, 291 A.D.2d 455).
However, the defendant's conviction for assault in the third degree must be vacated because it is a lesser-included offense of assault in the second degree (see CPL 300.40[b]; People v. Lee, 39 N.Y.2d 388; People v. Grier, 37 N.Y.2d 847; People v. Jones, 277 A.D.2d 329).
KRAUSMAN, J.P., McGINITY, SCHMIDT and MASTRO, JJ., concur.