Opinion
November 15, 1995
Appeal from the Erie County Court, Rogowski, J.
Present — Pine, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him, following a jury trial, of attempted arson in the second degree, defendant argues that County Court erred in denying his motion at the close of proof to dismiss the attempted arson count. Defendant argues that, because the proof established that an arson had been committed, the court should have dismissed the count charging only attempted arson. We disagree. Attempted arson is a lesser included offense of arson (see, CPL 1.20). Thus, if the proof established that an act of arson was committed, then it concomitantly established that an attempt to commit an act of arson was committed (see, Penal Law § 110.00; People v Dlugash, 41 N.Y.2d 725, 732). Neither defendant's right to notice of the charges nor the Grand Jury's exclusive power to determine them was violated (see, People v Grega, 72 N.Y.2d 489, 496).
We further reject defendant's contention that the proof was insufficient (see, People v Williams, 84 N.Y.2d 925, 926). Defendant's sentence is neither unduly harsh nor severe.