People v. Cantarero

248 A.D.2d 481, 668 N.Y.S.2d 922, 1998 N.Y. App. Div. LEXIS 2272

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Thomas, J.), rendered July 12, 1996, convicting him of assault in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reversing the conviction of assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The conviction for assault in the second degree for intent to cause serious physical injury is a lesser-included offense of the conviction of assault in the first degree for intent to cause serious physical injury with a dangerous instrument (see, Penal Law § 120.05 [1]; § 120.10 [1]; CPL 300.30; People v Seaman, 238 AD2d 449). Therefore, the conviction of assault in the second degree is reversed and the sentence imposed thereon is vacated.

The sentence imposed for the conviction of assault in the first degree is not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit (see, People v Gurganious, 214 AD2d 681; see also, People v Childress, 81 NY2d 263, 266-267; People v Bolling, 79 NY2d 317, 324).

Pizzuto, J. P., Santucci, Joy and Friedmann, JJ., concur.