Opinion
November 16, 1990
Appeal from the Monroe County Court, Egan, J.
Present — Dillon, P.J., Callahan, Green, Pine and Balio, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant was convicted of assault in the second degree. On appeal, he argues that the court erred by refusing his request to charge both reckless and negligent assault in the third degree as lesser included offenses. We agree. Assault in the third degree under either of these theories is a proper lesser included offense of assault in the second degree (People v. Fasano, 107 A.D.2d 1052, 1053). Here, the evidence, when viewed in the light most favorable to defendant (see, People v. Martin, 59 N.Y.2d 704, 705), could support a conclusion that defendant did not intend to cause physical injury to the victim, but stabbed him to prevent the victim from beating defendant's brother. The jury could have found that "in the tension and confusion of the situation, defendant either consciously disregarded the danger to [the victim] or negligently failed to perceive it in favor of his concern with stopping [the victim]" (People v. Sullivan, 68 N.Y.2d 495, 502).
The trial court further erred by holding that if defendant took the stand, he could be cross-examined about an unrelated charge then pending in City Court (see, People v. Betts, 70 N.Y.2d 289, 291). Defendant placed upon the record the fact that his decision not to testify was grounded in the court's erroneous Sandoval ruling (see, People v. Sandoval, 34 N.Y.2d 371).
The court also erred by allowing evidence that defendant made no attempt to contact the police after the incident (People v. De George, 73 N.Y.2d 614).