People v. Hernandez

273 A.D.2d 253, 710 N.Y.S.2d 251, 2000 N.Y. App. Div. LEXIS 6294

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Flug, J.), rendered December 10, 1996, convicting him of assault in the first degree (two counts) and assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s claims, the Supreme Court did not err in failing to give a supplemental charge on the defense of intoxication in response to a jury note, and the court meaningfully responded to the jury request for a readback of the first two counts of the indictment and the law applicable to these two counts of the indictment (see, People v Almodovar, 62 NY2d 126, 131; People v Malloy, 55 NY2d 296, 301-302, cert denied 459 US 847; People v Jackson, 226 AD2d 476).

The defendant’s contention that the court erred in submitting to the jury the charges of intentional assault in the first degree (see, Penal Law § 120.10 [2]) and reckless assault in the first degree (see, Penal Law § 120.10 [3]) in the conjunctive, rather than in the alternative (see, CPL 300.30 [5]; People v Gallagher, 69 NY2d 525), is unpreserved for appellate review (see, CPL 470.05 [2]), and we decline to reach the issue in the exercise of our interest of justice jurisdiction. Mangano, P. J., Bracken, McGinity and Luciano, JJ., concur.