People v. Montemurro

125 A.D.2d 605, 509 N.Y.S.2d 431, 1986 N.Y. App. Div. LEXIS 62895

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1986
• Status: Published

Opinion

— Appeal by the defendant from two judgments of the County Court, Nassau County (Lawrence, J.), both rendered August 6, 1985, convicting him of assault in the first degree and assault in the second degree under indictment No. 57804, and resisting arrest, escape in the third degree, and criminal trespass in the second degree under indictment No. 59513, upon jury verdicts, and imposing sentences.

Ordered that the judgments are affirmed, and the case is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (5).

In its charge to the jury on flight, the trial court should have instructed the jury that such evidence had slight probative value (see, People v Yazum, 13 NY2d 302, 304; People v Limage, 57 AD2d 906, affd 45 NY2d 845; 1 CJI [NY] 9.16 p 485). However, in the absence of any objection to the flight charge on that ground, and in view of the overwhelming evidence of the defendant’s guilt, we decline to reverse the judgments of conviction.

In addition, the trial court properly declined to charge the jury as to assault in the third degree as a lesser included offense since there was no reasonable view of the evidence to support such a charge (see, People v Glover, 57 NY2d 61; People v Kinnard, 98 AD2d 845, affd 62 NY2d 910).

We have considered the defendant’s other claims and find that they are either unpreserved for appellate review or without merit. Thompson, J. P., Rubin, Lawrence and Kunzeman, JJ., concur.