PEOPLE v. SAUNDERS (2002)

On appeal from a judgment convicting him of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that County Court erred in failing to instruct the jury that it could consider the lesser included offense of assault in the third degree (Penal Law § 120.00[1] ).   We disagree.   The People presented uncontroverted evidence that defendant inflicted blows to the victim's head with a tire iron, causing open wounds that required stitches.   The tire iron was “readily capable of causing * * * serious physical injury” and thus under the circumstances in which it was used constituted a dangerous instrument (Penal Law § 10.00[13];  see, People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30).   In the absence of evidence of injuries caused by anything other than a dangerous instrument, there is no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater (see, People v. Caban, 181 A.D.2d 536, 581 N.Y.S.2d 42, lv. denied 79 N.Y.2d 1047, 584 N.Y.S.2d 1014, 596 N.E.2d 412;  see generally, People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376).

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

MEMORANDUM: