PEOPLE v. SMITH (2004)

 Defendant appeals from a judgment convicting her after a nonjury trial of attempted assault in the second degree (Penal Law §§ 110.00, 120.05) and criminal possession of a weapon in the third degree (§ 265.02[1] ).   Although defendant contends that Supreme Court erred in failing to conduct a hearing on that part of her pretrial motion to suppress a weapon recovered from a garbage can, the record establishes that defendant did not seek suppression of the weapon in her motion papers and instead sought suppression of only a red T-shirt.   Defendant therefore failed to preserve her present contention for our review (see CPL 470.05[2] ).   Even assuming, arguendo, that defendant sought suppression of the weapon, we would nevertheless conclude that she abandoned her contention that the court erred in failing to conduct a hearing with respect to the weapon inasmuch as she did not obtain a ruling on her suppression motion, nor did she object when the weapon was admitted in evidence at trial (see People v. Smikle, 1 A.D.3d 883, 884, 767 N.Y.S.2d 727, lv. denied 1 N.Y.3d 634, 777 N.Y.S.2d 32, 808 N.E.2d 1291;  People v. Boccaccio, 288 A.D.2d 898, 732 N.Y.S.2d 385;  see also People v. DiLenola, 245 A.D.2d 1132, 1133, 667 N.Y.S.2d 535;  see generally People v. Rodriguez, 50 N.Y.2d 553, 429 N.Y.S.2d 631, 407 N.E.2d 475).  “In any event, in light of the inadequacy of defendant's moving papers, the failure to hold a hearing was not error” (People v. O'Connor, 242 A.D.2d 908, 910, 662 N.Y.S.2d 951, lv. denied 91 N.Y.2d 895, 669 N.Y.S.2d 9, 691 N.E.2d 1035;  see 710.60[3] ).

 Defendant further contends that the court erred in finding her guilty of attempted assault in the second degree because it is not a lesser included offense of attempted murder in the second degree under Penal Law § 125.25(1), with which she was charged.   Although attempted assault in the second degree under subdivision (1) of Penal Law § 120.05 is a lesser included offense of attempted murder in the second degree under Penal Law § 125.25(1) (see People v. Cabassa, 79 N.Y.2d 722, 729, 586 N.Y.S.2d 234, 598 N.E.2d 1, cert. denied sub nom. Lind v. New York, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563;  People v. Autry, 291 A.D.2d 896, 737 N.Y.S.2d 735, lv. denied 98 N.Y.2d 672, 746 N.Y.S.2d 461, 774 N.E.2d 226), defendant is correct that attempted assault in the second degree under subdivision (2) of Penal Law § 120.05 is not (see 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).   Here, the court failed to specify the subdivision of Penal Law § 120.05 on which it relied in finding defendant guilty of attempted assault in the second degree as a lesser included offense of attempted murder in the second degree.  “ Any error by the trial court in considering ․ a lesser crime arising out of the same criminal transaction as an indicted crime, that is not in fact a lesser included offense, is waived [where, as here, defendant fails to make a] timely objection” (People v. Ford, 62 N.Y.2d 275, 279, 476 N.Y.S.2d 783, 465 N.E.2d 322). Indeed, the record establishes that, in affirmatively requesting that the court consider attempted assault in the second degree as a lesser included offense, defendant failed to specify the subdivision that she wished the court to consider (see generally People v. Terry, 180 A.D.2d 700, 580 N.Y.S.2d 45;  People v. Corley, 162 A.D.2d 1020, 557 N.Y.S.2d 806, lv. denied 76 N.Y.2d 892, 561 N.Y.S.2d 554, 562 N.E.2d 879).

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

MEMORANDUM: