PEOPLE v. CARTER (2007)

 Defendant appeals from a judgment convicting him after a jury trial of two counts of burglary in the first degree (Penal Law § 140.30[4] ), two counts of attempted robbery in the first degree (§§ 110.00, 160.15[2], [4] ), and one count each of attempted assault in the first degree (§§ 110.00, 120.10[1] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ).   Contrary to the contention of defendant, Supreme Court properly denied his request to charge attempted assault in the second degree as a lesser included offense of attempted murder in the first degree.   Attempted assault in the second degree pursuant to sections 110.00 and 120.05(2) has the element of “a deadly weapon or a dangerous instrument,” which is not an element of attempted murder in the first degree pursuant to sections 110.00 and 125.27(1)(a) (see People v. Smith, 13 A.D.3d 1121, 1122, 786 N.Y.S.2d 879, lv. denied 4 N.Y.3d 803, 795 N.Y.S.2d 178, 828 N.E.2d 94;  People v. Martinez, 134 A.D.2d 458, 459, 521 N.Y.S.2d 80, lv. denied 70 N.Y.2d 957, 525 N.Y.S.2d 841, 520 N.E.2d 559).   It is thus possible to commit attempted murder in the first degree without concomitantly, by the same conduct, committing attempted assault in the second degree (see generally People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376).   While we agree with defendant that attempted assault in the first degree pursuant to sections 110.00 and 120.10(1) also is not a lesser included offense of attempted murder in the first degree under sections 110.00 and 125.27(1)(a), defendant correctly concedes that, by affirmatively requesting the charge on that lesser included offense, he waived any right to complain of the error (see People v. Ford, 62 N.Y.2d 275, 283, 476 N.Y.S.2d 783, 465 N.E.2d 322;  Smith, 13 A.D.3d at 1123, 786 N.Y.S.2d 879).

 We reject the further contention of defendant that he was denied a fair trial by the People's failure to turn over a copy of the complete NYSIS report with respect to a prosecution witness.   The People complied with CPL 240.45(1)(c) by informing defendant of the only pending criminal action against that witness of which they were aware (see People v. Graham, 289 A.D.2d 417, 418, 734 N.Y.S.2d 243, lv. denied 97 N.Y.2d 754, 742 N.Y.S.2d 615, 769 N.E.2d 361).   The verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: