People v. Manuel

237 A.D.2d 307, 655 N.Y.S.2d 406, 1997 N.Y. App. Div. LEXIS 2077

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 1997
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered August 11, 1993, convicting him of murder in the second degree, robbery in the first degree (five counts), robbery in the second degree, assault in the first degree (two counts), and unauthorized use of a vehicle in the first degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reversing the conviction of count 11 for assault in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

Contrary to the defendant’s contention, the record reflects that the trial court’s charge regarding the defendant’s alleged statements was proper, and the court did not err in refusing to provide an additional charge on the issue (see, People v Sharlow, 185 AD2d 289).

Although the defendant failed to preserve for appellate review the issue of whether the court should have dismissed count 11 charging assault in the first degree as a lesser-included offense of count 8 charging robbery in the first degree, preservation of this issue is not necessary to obtain appropriate relief (see, People v Hammond, 220 AD2d 684; People v Butler, 192 AD2d 543). In accordance with the facts in this case, count 11 should have been dismissed (see, People v Diaz, 65 AD2d 929; People v Chapman, 60 AD2d 584).

The defendant’s remaining contentions are either without merit or unpreserved for appellate review. Bracken, J. P., Santucci, Krausman and McGinity, JJ., concur.