| People v Rivera |
| 2016 NY Slip Op 03023 [138 AD3d 1037] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Barney Rivera, Appellant. |
James L. Iannone, Williston Park, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and PamelaKelly-Pincus of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Berkowitz, J.), rendered November 30, 2012, convicting him of attempted assault in thefirst degree, assault in the second degree, and criminal possession of a weapon in thefourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court erred in denying his request foran intoxication charge is unpreserved for appellate review because he failed to requestsuch a charge (see CPL 470.05 [2]). In any event, there was insufficient evidenceto support an inference that the defendant was so intoxicated as to be unable to form therequisite criminal intent (seePeople v Beaty, 22 NY3d 918 [2013]; People v Gaines, 83 NY2d 925[1994]; People v Lynch, 92AD3d 805 [2012]; People vSmith, 36 AD3d 633 [2007]).
Contrary to the defendant's contention, the Supreme Court properly denied hisrequest to charge reckless assault in the second degree (Penal Law § 120.05[4]) as a lesser-included offense of attempted assault in the first degree (Penal Law§§ 110.00, 120.10 [1]). "To establish entitlement to a lesser includedoffense charge, the defendant must make two showings. First, it must be shown that theadditional offense that he desires to have charged is a 'lesser included offense', i.e., that itis an offense of lesser grade or degree and that in all circumstances, not only in thosepresented in the particular case, it is impossible to commit the greater crime withoutconcomitantly, by the same conduct, committing the lesser offense. That established, thedefendant must then show that there is a reasonable view of the evidence in the particularcase that would support a finding that he committed the lesser offense but not thegreater" (People v Glover, 57 NY2d 61, 63 [1982]). Here, the first prong ofGlover is not satisfied because it is possible to commit attempted assault in thefirst degree without committing reckless assault (see People v Groom, 188 AD2d674 [1992]).
The sentence imposed was not excessive (see People v Delgado, 80 NY2d780 [1992]; People v Thompson, 60 NY2d 513, 519 [1983]; People vSuitte, 90 AD2d 80, 85-86 [1982]). Hall, J.P., Cohen, LaSalle and Connolly, JJ.,concur.