People v. Valentin

255 A.D.2d 126, 678 N.Y.S.2d 900, 1998 N.Y. App. Div. LEXIS 11641

Opinion

Judgment, Supreme Court, New York County (William Leibovitz, J.), rendered March 19, 1996, convicting defendant, after a jury trial, of two counts of assault in the second degree, and sentencing him to concurrent terms of lVs to 4 years, unanimously affirmed.

The court appropriately declined defendant’s request to submit to the jury the lesser included offense of third-degree assault as to one of the victims since there was no reasonable view of the evidence to support a finding that defendant injured the subject victim without the use of a dangerous instrument, to wit, a baseball bat (People v Kern, 149 AD2d 187, 238, affd 75 NY2d 638).

Defendant’s claim concerning an error in the court’s charge is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that it would not warrant reversal because “a proper supplemental charge was given, obviating any prejudice to defendant” (People v Cannon, 168 AD2d 356, lv denied 77 NY2d 904). Concur— Sullivan, J. P., Rosenberger, Wallach, Mazzarelli and Andrias, JJ.