| People v Feldhousen |
| 2013 NY Slip Op 00609 [103 AD3d 1114] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MarkL. Feldhousen, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.),rendered June 22, 2011. The judgment convicted defendant, upon a jury verdict, ofassault in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trialof assault in the third degree (Penal Law § 120.00 [2]). Defendant contends thatCounty Court erred in charging assault in the third degree as a lesser included offense ofassault in the second degree (Penal Law § 120.05 [2]) because there is noreasonable view of the evidence that could support a finding that defendant did not actintentionally. Inasmuch as defendant objected to that charge on a different ground at trial,he failed to preserve his current contention for our review (see CPL 470.05[2]; People v Autar, 54AD3d 609 [2008], lv denied 11 NY3d 922 [2009]).
In any event, defendant's contention lacks merit. The court properly charged thelesser included offense of assault in the third degree (Penal Law § 120.00 [2])because there is a reasonable view of the evidence to support a finding that defendantcommitted that crime (see generally People v Glover, 57 NY2d 61, 63 [1982]).Based upon the testimony of defendant and the victim, the jury could rationally concludethat defendant did not intend to cause physical injury to the victim but, instead,consciously disregarded the substantial and unjustifiable risk that his physical contactwith the victim would cause physical injury (see §§ 15.05 [3];120.00 [2]). The fact that defendant acted deliberately "does not necessarily preclude afinding of recklessness" (Peoplev Lora, 85 AD3d 487, 492 [2011], appeal dismissed 18 NY3d 829[2011]). Present—Smith, J.P., Peradotto, Carni, Sconiers and Whalen, JJ.