Opinion
2001-06769
Submitted November 21, 2002.
December 16, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ruchelsman, J.), rendered July 23, 2001, convicting him of gang assault in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Rachel Altstein of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jacqueline M. Linares of counsel; Christopher M. Tunney on the brief), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, CORNELIUS J. O'BRIEN, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the Supreme Court should have charged assault in the third degree as a lesser-included offense of gang assault in the second degree (see People v. Smitherman, 297 A.D.2d 352; People v. Ramos, 242 A.D.2d 510; People v. Sater, 201 A.D.2d 323; see also People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the defendant (see People v. Shuman, 37 N.Y.2d 302), no reasonable view of the evidence could support a jury finding that the defendant committed the lesser offense but not the greater (see People v. House, 278 A.D.2d 244; see also People v. Sutter, 162 A.D.2d 644).
The Supreme Court providently exercised its discretion in denying the defendant youthful offender treatment (see People v. Jones, 288 A.D.2d 397; People v. Noboa, 280 A.D.2d 558; People v. Vera, 206 A.D.2d 494), and the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
FEUERSTEIN, J.P., SMITH, O'BRIEN and GOLDSTEIN, JJ., concur.