| People v Figueroa |
| 2008 NY Slip Op 10635 [57 AD3d 1003] |
| December 30, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JasonFigueroa, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.),rendered October 10, 2007, convicting him of assault in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed and the matter is remitted to the County Court, SuffolkCounty, for further proceedings pursuant to CPL 460.50 (5).
The trial court properly denied the defendant's request to charge assault in the third degree(see Penal Law § 120.00 [1]) as a lesser-included offense of assault in the seconddegree (see Penal Law § 120.05 [1]). Contrary to the defendant's contention,viewing the evidence in the light most favorable to him (see People v Randolph, 81NY2d 868, 869 [1993]; People v Martin, 59 NY2d 704, 705 [1983]), no reasonable viewof the evidence supported a finding that the injury he caused was anything less than a seriousphysical injury (see People v Vasquez, 25 AD3d 465, 466 [2006]; Penal Law §10.00 [9], [10]).
The trial court's charge properly limited the application of the defense of justification to thosecircumstances in which the use of deadly physical force would be justified (see PenalLaw § 35.15 [2]). Contrary to the defendant's contention, viewing the evidence in the lightmost favorable to him (see People v McManus, 67 NY2d 541, 549 [1986]), noreasonable view of the evidence supported a finding [*2]that theforce he used was anything less than deadly physical force (see People v Hyc, 240 AD2d431, 432 [1997]; People v McCabe, 237 AD2d 380, 380-381 [1997]; People vSamuels, 198 AD2d 384 [1993]; Penal Law § 10.00 [11]; § 35.15 [1]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review (see CPL470.05 [2]) and, in any event, are without merit. Rivera, J.P., Dillon, Covello and McCarthy, JJ.,concur.