PEOPLE v. MUSLIM

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

The PEOPLE of the State of New York, Respondent, v. Sharif MUSLIM, Defendant-Appellant.

Decided: November 29, 2005

FRIEDMAN, J.P., SULLIVAN, NARDELLI, WILLIAMS, SWEENY, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Megan E. Joy of counsel), for respondent.

Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered December 3, 2002, convicting defendant, after a jury trial, of reckless endangerment in the first degree and resisting arrest, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years and 1 year, respectively, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and remanding for resentencing, and otherwise affirmed.

 The court properly declined to submit the lesser included offense of second-degree reckless endangerment.   There was no reasonable view of the evidence, viewed most favorably to defendant, that would support such a charge.   Even giving due consideration to trial issues concerning police credibility, there was still no reasonable view other than that defendant led the police on a very dangerous high speed chase, and that his conduct established first-degree reckless endangerment (see People v. Parks, 281 A.D.2d 217, 722 N.Y.S.2d 15 [2001], lv. denied 96 N.Y.2d 866, 730 N.Y.S.2d 40, 754 N.E.2d 1123 [2001] ).

 Defendant was adjudicated a second felony offender on the basis of a prior conviction under New Jersey law for aggravated assault (N.J. Stat. Ann. § 2C:12-1[b][1] ).   However, that offense can be committed through non-intentional conduct that is not the equivalent of reckless endangerment in the first degree (Penal Law § 120.25), since, unlike the New York statute, the New Jersey statute does not require creation of a grave risk of death.   Matter of Villar, 212 A.D.2d 86, 628 N.Y.S.2d 607 [1995] is not to the contrary, because it only found the two statutes in question to be “essentially similar” under the standard applicable to automatic disbarment of a convicted attorney (see Matter of Cahn, 52 N.Y.2d 479, 482, 438 N.Y.S.2d 753, 420 N.E.2d 945 [1981];  Matter of Chu, 42 N.Y.2d 490, 492-493, 398 N.Y.S.2d 1001, 369 N.E.2d 1 [1977] ).