People v. Basciano

54 A.D.3d 637, 864 N.Y.S.2d 20

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 25, 2008
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered June 17, 2007, convicting defendant, after a jury verdict, of assault in the second degree, and sentencing him to a term of 21h years, unanimously affirmed.

The court properly granted the People’s request to submit second-degree assault under Penal Law § 120.05 (1) (causing serious physical injury) to the jury as a lesser included offense of first-degree assault under Penal Law § 120.10 (1) (causing serious physical injury by means of a dangerous instrument). There was a reasonable view of the evidence (see People v Negron, 91 NY2d 788 [1998]) that defendant seriously injured the victim by means of his fist, rather than by means of an unidentified hard object as set forth in the indictment. Indeed, such a view was advanced by defendant in his cross-examination of the People’s witnesses. Since the indictment necessarily contained the lesser included offense, there is no merit to defendant’s arguments that the court constructively amended the indictment or that the People impermissibly changed their theory of prosecution (see People v Gouyagadosh, 295 AD2d 246, 247 [2002]; People v Udzinski, 146 AD2d 245, 254 [1989], Iv denied 74 NY2d 853 [1989]). Concur—Tom, J.P., Mazzarelli, Friedman, Williams and Moskowitz, JJ.