| People v Extale |
| 2010 NY Slip Op 08177 [78 AD3d 1519] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James Extale,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie Swift of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered February28, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him of assault in the second degree (PenalLaw § 120.05 [4]), defendant contends that County Court erred in allowing the prosecutor towithdraw the count charging him with vehicular assault in the first degree. We reject that contention.The People have "broad discretion in determining when and in what manner to prosecute a suspectedoffender" (People v Di Falco, 44 NY2d 482, 486 [1978]), including the discretion to reduce acharge when they deem it appropriate (seePeople v Urbaez, 10 NY3d 773, 775 [2008]). Although there is no provision in CPL article210 authorizing the People to withdraw a count in an indictment, there is also no provision prohibitingthe People from doing so. We thus conclude that, in the absence of a statutory provision limiting suchauthority, decisions concerning the manner in which to prosecute a defendant are within theprosecutor's " 'broad discretion' " (People v McLaurin, 260 AD2d 944, 944 [1999], lvdenied 93 NY2d 1022 [1999]).
Contrary to defendant's further contentions, the court properly charged assault in the seconddegree as a lesser included offense of assault in the first degree under Penal Law § 120.10 (1)(see People v Flecha, 43 AD3d1385, 1386 [2007], lv denied 9 NY3d 990 [2007]), and the court's submission of thelesser included offense did not violate defendant's double jeopardy rights (see generally Matter of Suarez v Byrne, 10NY3d 523, 538 [2008], rearg denied 11 NY3d 753 [2008]). On a prior appeal, wemodified the judgment of conviction by reversing those parts convicting defendant of, inter alia, assaultin the first degree and vehicular assault in the first degree (People v Extale, 42 AD3d 897 [2007]). In granting a new trial on thosecounts, we agreed with defendant that the verdict was inconsistent with respect to those counts and thatthey should have been charged in the alternative (id.). The record establishes that, in the firsttrial, the court properly instructed the jury to consider whether defendant was guilty of assault in thesecond degree only if the jury acquitted defendant of assault in the first degree. Because the jury in thefirst trial found defendant guilty of assault in the first degree, it "never reached—i.e., did not have'a full [*2]opportunity to return a verdict' " on the lesser included count(Suarez, 10 NY3d at 537), and defendant therefore was never acquitted of that lesser includedcount (see CPL 300.50 [4]). Thus, "constitutional double jeopardy poses no impediment to[defendant's] retrial for" the lesser included offense (Suarez, 10 NY3d at 538). Finally, weconclude that the sentence is not unduly harsh or severe. Present—Martoche, J.P., Lindley,Sconiers, Pine and Gorski, JJ.