Opinion
2000-08892
Submitted June 14, 2002
August 19, 2002.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered August 28, 2000, convicting him of assault in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
Cristina D'Amato Arvoy, White Plains, N.Y., for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant contends that the trial court should have charged assault in the second degree as a lesser-included offense of assault in the first degree because a reasonable view of the evidence could support a finding that he recklessly caused serious physical injury to the complainant (see Penal Law § 120.05). However, the defendant's request at trial to charge second degree assault as a lesser-included offense was based solely upon the theory that he intended to cause physical injury rather than serious physical injury to the complainant (see Penal Law § 120.05). Thus, his present contention is unpreserved for appellate review (see People v. Borrello, 52 N.Y.2d 952; People v. Rookey, 292 A.D.2d 783; People v. Ramos, 242 A.D.2d 510; People v. Sater, 201 A.D.2d 323, lv denied 83 N.Y.2d 858). The defendant's additional contention that the court should have instructed the jury on the defense of justification is also unpreserved for appellate review, since the defendant failed to request a justification charge (see CPL § 470.05). We decline to review the defendant's unpreserved contentions in the exercise of our interest of justice jurisdiction.
Furthermore, considering the totality of the circumstances existing at the time of the representation, the defendant was not denied the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713; People v. Baldi, 54 N.Y.2d 137, 147; People v. Fernandez, 248 A.D.2d 801).
ALTMAN, J.P., KRAUSMAN, SCHMIDT and CRANE, JJ., concur.