People v. Sater

201 A.D.2d 323, 608 N.Y.S.2d 836, 1994 N.Y. App. Div. LEXIS 1093

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 1994
• Status: Published

Opinion

Judgment, Supreme Court, New York County (James Leff, J.), rendered March 31, 1993, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of IV2 to &V2 years, unanimously affirmed. The matter is remitted to Supreme Court for further proceedings pursuant to CPL 460.50 (5).

Since the only basis for defendant’s request for a charge of assault in the second degree (Penal Law § 120.05 [2]) as a lesser included offense of assault in the first degree (Penal Law § 120.10 [1]) was that the jury could find physical injury as opposed to serious physical injury, the arguments now advanced, that second degree assault should have been submitted on the theory that defendant intended to cause only physical injury or that he recklessly caused serious physical injury (Penal Law § 120.05 [4]), are unpreserved for appellate review as a matter of law, and we decline to review them in the interest of justice (CPL 470.05 [2]; cf., People v Chin, 67 NY2d 22, 34). In any event, if we were to review these claims, we would find that no reasonable view of the evidence adduced at trial could support a finding that defendant acted other than with an intent to cause serious physical injury. We have reviewed defendant’s argument that the court’s rulings evinced judicial bias and deprived him of a fair trial and find it to be without merit. Concur — Murphy, P. J., Sullivan, Ross, Rubin and Tom, JJ.