People v. Campos

171 A.D.2d 521, 567 N.Y.S.2d 245, 1991 N.Y. App. Div. LEXIS 3461

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1991
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Alfred Kleiman, J.), rendered October 30, 1987, convicting defendant after jury trial of assault in the first degree, and sentencing him as a predicate violent felon to a prison term of five to ten years, unanimously affirmed.

Defendant was found guilty of assault in the first degree on evidence that he struck Luis Nieves in the left arm with a machete, slicing down into the bone, while repeatedly screaming, "I’m going to kill you.”

Defendant was not entitled to a charge on assault in the second or third degrees as lesser included offenses of assault in the first degree, as no reasonable view of the evidence would support a finding that defendant committed the lesser offenses but not the greater (CPL 300.50 [1]; People v Glover, 57 NY2d 61). In this regard, defendant does not contest that the complainant suffered a serious physical injury, but argues nonetheless that the jury may have found that defendant intended only to cause physical injury, or was negligent. We believe that the evidence, viewed rationally, ruled out anything less than the intent to cause serious physical injury.

The court did not abuse its discretion by denying a hearing on defendant’s motion to set aside the verdict. Although defense counsel raised the issue that a juror deliberately perjured herself by withholding from the court information as to her prior arrest and swearing that she had never been arrested, the motion papers were unsupported by sworn allegations of facts as required by statute. (CPL 330.40 [2] [e].) Concur — Carro, J. P., Milonas, Asch and Kassal, JJ.