Opinion
April 12, 1993
Appeal from the Supreme Court, Queens County (Robinson, J.).
Ordered that the judgment is modified, on the law, by dismissing the conviction for assault in the third degree and vacating the sentence imposed thereon; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the defendant (see, People v Padgett, 60 N.Y.2d 142), we find that there is no reasonable view thereof which would support a finding that the defendant struck the complainant in self defense (see, People v Watts, 57 N.Y.2d 299, 301). Accordingly, the court properly refused to instruct the jury on the defense of justification.
The court committed error in failing to dismiss the defendant's conviction for assault in the third degree (Penal Law § 120.00). Under CPL 300.40 (3) (b), "[w]here the verdict is comprised of inclusory concurrent counts a verdict of guilty on the greatest count is deemed a dismissal of every lesser count" (People v Grier, 37 N.Y.2d 847, 848). Moreover, a conviction on the lesser count must be dismissed although the defendant did not request that the inclusory count be charged in the alternative (see, People v Lee, 39 N.Y.2d 388, 390; see also, People v Robinson, 166 A.D.2d 543; People v Johnson, 158 A.D.2d 939).
The defendant was properly denied youthful offender treatment (see, People v Cruickshank, 105 A.D.2d 325, affd sub nom. People v Dawn Maria C., 67 N.Y.2d 625).
The defendant's contention that the court erred in fixing the amount of restitution without a hearing is unpreserved for appellate review (see, People v Callahan, 80 N.Y.2d 273; People v Proctor, 79 N.Y.2d 992), and we decline to review this claim in the exercise of our interest of justice jurisdiction.
To the extent that the defendant's remaining contentions are preserved for appellate review, they are without merit (see, People v Udzinski, 146 A.D.2d 245, 252). Thompson, J.P., Bracken, Eiber and Pizzuto, JJ., concur.