PEOPLE v. CURTIS (1997)

Court of Appeals of New York.

The PEOPLE of the State of New York, Respondent, v. John CURTIS, Appellant.

Decided: March 27, 1997

Shearman & Sterling, New York City (Stephen M. Cowherd, of counsel) and Paul Skip Laisure, Daniel A. Warshawsky and Richard M. Greenberg, for appellant. Robert M. Morgenthau, District Attorney of New York County, New York City (Richard Nahas and Morrie I. Kleinbart, of counsel), for respondent.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of two counts of assault in the second degree. The Appellate Division affirmed the judgment and a Judge of this Court granted leave to appeal. We now affirm. The courts below correctly concluded that no reasonable view of the evidence supported the requested charge-down to third degree assault under all the circumstances of the evidence adduced in this case, including the nature, manner and use of the belt (see, CPL § 300.50). The trial court's unchallenged instruction to the jury concerning its fact-finding responsibility with respect to the dangerous instrumentality element was necessary to satisfy the requirement that the People prove all elements of the crime beyond a reasonable doubt. The instruction did not create a defense entitlement to a charge-down to assault in the third degree (see, People v. Butler, 84 N.Y.2d 627, 630, 620 N.Y.S.2d 775, 644 N.E.2d 1331).

We have considered the other issues tendered to this Court and are satisfied that they are meritless.

Order affirmed in a memorandum.

MEMORANDUM.

KAYE, C.J., and TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY, JJ., concur.

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