People v. Roberts

99 A.D.2d 761, 471 N.Y.S.2d 680, 1984 N.Y. App. Div. LEXIS 17136

Opinion

Appeal by defendant from a judgment of the County Court, Nassau County (Murray, J.), rendered October 19,1982, convicting him of burglary in the third degree, attempted assault in the second degree, and resisting arrest, upon a jury verdict, and imposing sentence. Judgment affirmed. A review of the record indicates sufficient evidence in both quantity and quality to support the jury’s verdict (People v Contes, 60 NY2d 620; People v Gilligan, 42 NY2d 969; People v Coe, 99 AD2d 516). Nor is resisting arrest (Penal Law, § 205.30) a lesser included offense (CPL 1.20, subd 37) of attempted assault in the second degree (Penal Law, §§ 110.00,120.05, subd 3), as the element of intentionally preventing an authorized arrest necessary to establish in the crime of resisting arrest, is not necessary to establish the crime of attempted assault in the second degree (cf. People v Glover, 57 NY2d 61; People v Acevedo, 40 NY2d 701,706; People v Ivisic, 95 AD2d 307). Consequently, that count is not subject to dismissal pursuant to CPL 300.40 (subd 3, par [b]) (see People v Acevedo, supra, p 706). To the extent that People v Early (85 AD2d 752, 753), and People v Lett (67 AD2d 1077) are to the contrary, we decline to follow them. We further note that modification of the sentence in the interest of justice is not warranted (see People v Suitte, 90 AD2d 80, 85-86). Titone, J. P., Lazer, Thompson and O’Connor, JJ., concur.