PEOPLE v. VASQUEZ (2006)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Juan VASQUEZ, Defendant-Appellant.

Decided: January 19, 2006

ANDRIAS, J.P., SAXE, FRIEDMAN, GONZALEZ, CATTERSON, JJ.

Laura R. Johnson, The Legal Aid Society, New York (Steven R. Berko of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Nicholas H. Penfold of counsel), for respondent.

Judgment, Supreme Court, New York County (Philip M. Grella, J.), rendered April 15, 2004, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 12 years, unanimously affirmed.

The court properly declined to submit assault in the second degree (Penal Law § 120.05[2] ) as a lesser included offense of assault in the first degree (Penal Law § 120.10[1] ). The evidence established that defendant heated a pan of oil on a stove and deliberately threw it in the victim's face, causing protracted disfigurement. There was no reasonable view of the evidence, viewed most favorably to defendant, that he only caused, or only intended to cause, non-serious physical injury (see e.g. People v. Franco, 271 A.D.2d 383, 708 N.Y.S.2d 62 [2000], lv. denied 95 N.Y.2d 865, 715 N.Y.S.2d 220, 738 N.E.2d 368 [2000] ).

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