People v. Saunders

292 A.D.2d 780, 738 N.Y.S.2d 785

Opinion

Appeal from a judgment of Ontario County Court (Doran, J.), entered November 2, 2000, convicting defendant after a jury trial of assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him of assault in the second degree (Penal Law § 120.05 [2]), defendant contends that County Court erred in failing to instruct the jury that it could consider the lesser included offense of assault in the third degree (Penal Law § 120.00 [1]). We disagree. The People presented uncontroverted evidence that defendant inflicted blows to the victim’s head with a tire iron, causing open wounds that required stitches. The tire iron was “readily capable of causing * * * serious physical injury” and thus under the circumstances in which it was used constituted a dangerous instrument (Penal Law § 10.00 [13]; see, People v Carter, 53 NY2d 113, 116). In the absence of evidence of injuries caused by anything other than a dangerous instrument, there is no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater (see, People v Caban, 181 AD2d 536, lv denied 79 NY2d 1047; see generally, People v Glover, 57 NY2d 61, 63). Present — Pigott, Jr., P.J., Hayes, Wisner, Hurlbutt and Gorski, JJ.