People v. Littlejohn

141 A.D.2d 850, 530 N.Y.S.2d 191, 1988 N.Y. App. Div. LEXIS 7107

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered April 25, 1984, convicting him of attempted murder in the second degree and assault in' the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant violently struck the complainant in the head with a hatchet. He was convicted, as charged, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and of assault in the first degree (Penal Law § 120.10 [1]). He contends that the charge of assault in the first degree should be dismissed because that crime is a lesser included offense of the crime of attempted murder (see, CPL 300.30 [4]; 300.40). Although assault was at one time held to be a lesser included offense of attempted murder (see, People v Rosado, 53 AD2d 816; People v Huffman, 60 AD2d 962), "[i]n the wake of the Court of Appeals decisions in People v Green (56 NY2d 427 [rearg denied 57 NY2d 775]) and People v Glover (57 NY2d 61), such is no longer the case” (People v Davis, 95 AD2d 837, 838; CPL 300.30). Hence, dismissal is not required. Mangano, J. P., Bracken, Weinstein and Balletta, JJ., concur.