Opinion
February 2, 1990
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Callahan, J.P., Boomer, Green, Pine and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of assault in the second degree and criminal possession of a weapon in the third degree for stabbing a man in the chest with a knife during a street fight. The victim and his three women companions testified that defendant stabbed the victim with a 5-inch switchblade knife. They also testified that defendant was the aggressor and that the victim had no weapon. Defendant, on the other hand, testified that the victim was the aggressor and that he had been pinned to the ground and was being choked. He related that he began to get dizzy and, remembering the small knife in his fiancee's jacket, which he was wearing, pulled it to give the victim "a poke".
Defendant's sole argument on appeal is that the trial court's refusal to charge assault in the third degree as a lesser included offense of assault in the second degree deprived him of a fair trial. Since it is theoretically impossible to commit assault in the second degree under Penal Law § 120.05 (2) without at the same time committing assault in the third degree under Penal Law § 120.00 (1) (see, People v Fasano, 107 A.D.2d 1052), the defendant satisfied the first prong of the Glover test (see, People v Glover, 57 N.Y.2d 61). However, since on this record there was no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater offense, defendant failed to satisfy the second prong of the Glover test, and the trial court thus properly declined defendant's request to charge third degree assault as a lesser included offense of second degree assault. Defendant admitted stabbing or poking the victim with a knife. We find nothing in the record to controvert that the knife used by defendant in stabbing the victim was, under the circumstances in which it was used, a "dangerous instrument". The medical proof established that the stab wound to the victim's lower left chest wall penetrated about three quarters of an inch. Exploratory surgery was conducted and although the victim did not suffer any internal injuries, this fortuitous happenstance does not negate the fact that the knife was nevertheless "readily capable of causing death or other serious physical injury" (Penal Law § 10.00).