Opinion
June 7, 1993
Appeal from the County Court, Suffolk County (Mazzei, J.).
Ordered that the judgment is affirmed.
The defendant's burglary and assault convictions stem from the brutal stabbing of his estranged wife on the evening of December 27, 1986, in the parties' home. The defendant had been barred from the home by an order of protection. The defendant inflicted multiple wounds on his wife's face, arms, chest and back with a 10 to 12-inch knife. In all, there were approximately 33 such wounds, including a severe injury to one of the victim's eyes.
The defendant's contention that the court erred in not charging the lesser-included offenses of assault in the second degree and assault in the third degree under count four of the indictment lacks merit. Count four charged assault in the first degree by means of a deadly weapon or dangerous instrument (see, Penal Law § 120.10). We agree with the trial court's reasoning that while the first degree assault charge required an intent to cause "serious physical injury" by use of a deadly weapon or dangerous instrument, the lesser charges required merely that "physical injury" be caused, and a reasonable view of the evidence did not support a finding that the defendant merely intended to cause and caused physical injury (see, CPL 1.20; 300.50 [1]; People v. Ford, 62 N.Y.2d 275, 281; People v. Glover, 57 N.Y.2d 61, 63; People v. Scarborough, 49 N.Y.2d 364, 369-370; People v Robinson, 166 A.D.2d 543).
The defendant's sentence is not excessive (see, People v Farrar, 52 N.Y.2d 302; People v. Suitte, 90 A.D.2d 80).
We find no merit to the defendant's remaining contention. Lawrence, J.P., Ritter, Copertino and Santucci, JJ., concur.