Opinion
2001-03836
Argued January 28, 2003.
February 24, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered April 27, 2001, convicting him of assault in the second degree, assault in the third degree (three counts), reckless endangerment in the first degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Yvonne Shivers of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Kimberley C. Nielsen of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, HOWARD MILLER, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the verdict of guilt of assault in the second degree under Penal Law § 120.05(2) (intent to cause physical injury) is inconsistent with the verdict of guilt of assault in the third degree under Penal Law § 120.00(2) (recklessly causing physical injury) is unpreserved for appellate review since the defendant failed to raise it prior to the discharge of the jury, and we decline to consider it in the exercise of our interest of justice jurisdiction (see People v. Alfaro, 66 N.Y.2d 985; People v. Canteen, 280 A.D.2d 679; People v. Flowers, 274 A.D.2d 523).
The defendant's contention that the trial court improvidently exercised its discretion in its Sandoval ruling is without merit (see People v. Walker, 83 N.Y.2d 455, 459; People v. Sandoval, 34 N.Y.2d 371, 375; People v. Scarpulla, 238 A.D.2d 359, 360).
ALTMAN, J.P., FLORIO, H. MILLER and ADAMS, JJ., concur.