Opinion
March 9, 1987
Appeal from the Supreme Court, Kings County (Pincus, J.).
Ordered that the judgment is modified, on the law, by reversing the convictions of attempted assault in the second degree (two counts), vacating the sentences imposed thereon, and dismissing counts one and two of the indictment. As so modified, the judgment is affirmed.
The defendant was charged with a number of offenses arising out of a shootout between himself and two police officers. The defendant had gained control of Police Officer Billy Nance's gun, while Nance was attempting to apprehend him for the theft of two automobile tires. As he fled, the defendant fired several shots at Officer Nance and his partner, Police Officer Milton Holmes. Officer Holmes returned the fire.
The defendant was charged in the indictment, inter alia, with two counts of attempted murder in the first degree and two counts of attempted aggravated assault upon a police officer. The court submitted to the jury under the attempted murder counts the lesser included offenses of attempted assault in the second degree. The jury acquitted the defendant of the attempted murder counts but returned a verdict of guilty, inter alia, on the attempted assault and attempted aggravated assault counts.
As the People concede in their brief, the crime of attempted assault in the second degree charged under Penal Law § 120.05 (1) is a lesser included offense of attempted aggravated assault upon a police officer (Penal Law § 120.11; CPL 1.20; People v Glover, 57 N.Y.2d 61, 63; People v. Gutierrez, 105 A.D.2d 754). Therefore, the judgment must be modified by reversing the convictions of attempted assault in the second degree, as the guilty verdict upon the greater count of aggravated assault upon a police officer is deemed to constitute a dismissal of every lesser included concurrent count submitted to the jury (CPL 300.40 [b]; People v. Gutierrez, supra). The convictions under both the greater and lesser counts in issue are supported by the same criminal transactions and are, therefore, concurrent counts.
The defendant contends that the trial court's failure to charge that the police officers who testified at trial were interested witnesses constitutes reversible error. He further argues that the trial court's instructions with respect to the manner in which the jury should evaluate the evidence diluted the concept of reasonable doubt. The defendant's contentions regarding the alleged charge errors have not been preserved for appellate review as the defense counsel failed to object to the trial court's instructions and did not request curative instructions when an opportunity to do so was available (see, CPL 470.05; People v. Graham, 122 A.D.2d 162; People v. Flores, 113 A.D.2d 899).
In any event, we note that the charge on interested witnesses, as given, was balanced as to both the defense and the prosecution (see, People v. Bell, 38 N.Y.2d 116). Nor is a police officer an interested witness as a matter of law (People v. Holmes, 117 A.D.2d 480, 484; People v. Simpson, 99 A.D.2d 555, 556). We further note that the charge, viewed in its entirety, conveyed the applicable law governing the jury's deliberations (see, People v Smith, 113 A.D.2d 905, 908). Mangano, J.P., Thompson, Brown and Eiber, JJ., concur.