People v. Figueroa

57 A.D.3d 1003, 870 N.Y.2d 454

Opinion

The trial court properly denied the defendant’s request to charge assault in the third degree (see Penal Law § 120.00 [1]) as a lesser-included offense of assault in the second degree (see Penal Law § 120.05 [1]). Contrary to the defendant’s contention, viewing the evidence in the light most favorable to him (see People v Randolph, 81 NY2d 868, 869 [1993]; People v Martin, 59 NY2d 704, 705 [1983]), no reasonable view of the evidence supported a finding that the injury he caused was anything less than a serious physical injury (see People v Vasquez, 25 AD3d 465, 466 [2006]; Penal Law § 10.00 [9], [10]).

The trial court’s charge properly limited the application of the defense of justification to those circumstances in which the use of deadly physical force would be justified (see Penal Law § 35.15 [2]). Contrary to the defendant’s contention, viewing the evidence in the light most favorable to him (see People v McManus, 67 NY2d 541, 549 [1986]), no reasonable view of the evidence supported a finding that the force he used was anything less than deadly physical force (see People v Hyc, 240 AD2d 431, 432 [1997]; People v McCabe, 237 AD2d 380, 380-381 [1997]; People v Samuels, 198 AD2d 384 [1993]; Penal Law § 10.00 [11]; § 35.15 [1]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions are unpreserved for appellate review (see CPL 470.05 [2]) and, in any event, are without merit. Rivera, J.P., Dillon, Covello and McCarthy, JJ., concur.