People v. Caban

181 A.D.2d 536, 581 N.Y.S.2d 42, 1992 N.Y. App. Div. LEXIS 3698

Opinion

— Judgment, Supreme Court, New York County (Joan B. Carey, J.), rendered August 8, 1989, convicting defendant, after jury trial, of criminal possession of a weapon in the second degree, assault in the second degree and reckless endangerment in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of imprisonment of 6 to 12 years, 3 Vi to 7 years, and one year, respectively, to run consecutively to a sentence of imprisonment of 3 to 9 years, previously imposed in New York County on unrelated charges, unanimously affirmed.

Evidence at trial was that defendant argued with a long time acquaintance, chased her into the hallway of an apartment building, carefully aimed a loaded revolver at her, and shot once, from a distance of approximately five to six feet. The bullet entered the victim’s left leg and lodged in her right knee, was still embedded at the time of trial, and caused both scarring and continuing pain.

The trial court properly refused to charge assault in the third degree as a lesser included offense as there was no reasonable view of the evidence that would support a finding that defendant committed the lesser, but not the greater offense (see, People v Glover, 57 NY2d 61).

We have considered defendant’s additional claims and find them to be both unpreserved for appellate review as a matter of law, and meritless. Concur — Milonas, J. P., Wallach, Kassal and Rubin, JJ.