Opinion
December 21, 2000.
Judgment, Supreme Court, New York County (William Leibovitz, J.), rendered December 15, 1997, convicting defendant, after a jury trial, of attempted assault in the first degree and assault in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 13 years and 7 years, respectively, unanimously affirmed.
Priscilla Steward, for respondent.
Allen Fallek, for defendant-appellant.
Before: Sullivan, P.J., Wallach, Lerner, Andrias, Buckley, JJ.
The court properly declined to charge assault in the third degree as a lesser included offense of assault in the second degree where the integrated testimony of the victim left no reasonable view of the evidence by which the jury could have convicted defendant of the lesser, but not the greater, count (see, People v. Negron, 91 N.Y.2d 788).
The court properly exercised its discretion in admitting a piece of rope into evidence. The victim's testimony was clear that the piece of rope that was admitted into evidence was not the exact piece that defendant had allegedly put around her neck, but was very similar to it and was cut from the same clothesline and was found by her in the apartment immediately after the attack. Under these circumstances, and in light of the medical testimony linking the pattern in the rope to the furrows left in the victim's neck, the rope was properly admitted into evidence as relevant to the issues before the jury (see, People v. Del Vermo, 192 N.Y. 470, 478-482), and there is no reason to believe that the jury was misled about its import.
We perceive no basis for reduction of sentence.
Motion seeking to enlarge record denied.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.