PEOPLE v. FIGUEROA (2008)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered October 10, 2007, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed and the matter is remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 460.50(5).

 The trial court properly denied the defendant's request to charge assault in the third degree (see Penal Law § 120.00[1] ) as a lesser-included offense of assault in the second degree (see Penal Law § 120.05[1] ).   Contrary to the defendant's contention, viewing the evidence in the light most favorable to him (see People v. Randolph, 81 N.Y.2d 868, 869, 597 N.Y.S.2d 630, 613 N.E.2d 536;  People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225), no reasonable view of the evidence supported a finding that the injury he caused was anything less than a serious physical injury (see People v. Vasquez, 25 A.D.3d 465, 466, 810 N.Y.S.2d 124;   Penal Law § 10.00[9], [10] ).

 The trial court's charge properly limited the application of the defense of justification to those circumstances in which the use of deadly physical force would be justified (see Penal Law § 35.15[2] ).   Contrary to the defendant's contention, viewing the evidence in the light most favorable to him (see People v. McManus, 67 N.Y.2d 541, 549, 505 N.Y.S.2d 43, 496 N.E.2d 202), no reasonable view of the evidence supported a finding that the force he used was anything less than deadly physical force (see People v. Hyc, 240 A.D.2d 431, 432, 658 N.Y.S.2d 1005;  People v. McCabe, 237 A.D.2d 380, 380-381, 655 N.Y.S.2d 60;  People v. Samuels, 198 A.D.2d 384, 603 N.Y.S.2d 344;  Penal Law §§ 10.00[11], 35.15[1] ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, are without merit.