| People v Basciano |
| 2008 NY Slip Op 07076 [54 AD3d 637] |
| September 25, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Steven Basciano, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Cynthia A. Carlson of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered June 17, 2007,convicting defendant, after a jury verdict, of assault in the second degree, and sentencing him to aterm of 2½ years, unanimously affirmed.
The court properly granted the People's request to submit second-degree assault under PenalLaw § 120.05 (1) (causing serious physical injury) to the jury as a lesser included offenseof first-degree assault under Penal Law § 120.10 (1) (causing serious physical injury bymeans of a dangerous instrument). There was a reasonable view of the evidence (see People vNegron, 91 NY2d 788 [1998]) that defendant seriously injured the victim by means of hisfist, rather than by means of an unidentified hard object as set forth in the indictment. Indeed,such a view was advanced by defendant in his cross-examination of the People's witnesses. Sincethe indictment necessarily contained the lesser included offense, there is no merit to defendant'sarguments that the court constructively amended the indictment or that the People impermissiblychanged their theory of prosecution (see People v Gouyagadosh, 295 AD2d 246, 247[2002]; People v Udzinski, 146 AD2d 245, 254 [1989], lv denied 74 NY2d 853[1989]). Concur—Tom, J.P., Mazzarelli, Friedman, Williams and Moskowitz, JJ.