PEOPLE v. ALBANNA

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Tofeek ALBANNA, Defendant-Appellant.

Decided: November 10, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, KEHOE, MARTOCHE, AND HAYES, JJ. Eoannou, Lana & D'Amico, Buffalo (Thomas Theophilos of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[1] ) and criminal possession of a weapon in the fourth degree (§ 265.01[2] ).   Defendant failed to preserve for our review his contentions concerning the alleged legal insufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In addition, contrary to defendant's contention, the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We agree with defendant, however, that County Court erred in denying his request to charge assault in the second degree (§ 120.05[2] ) as a lesser included offense of assault in the first degree (see People v. Walker, 306 A.D.2d 56, 57, 761 N.Y.S.2d 35, lv. denied 100 N.Y.2d 600, 766 N.Y.S.2d 176, 798 N.E.2d 360;  People v. Mahoney, 122 A.D.2d 815, 816, 505 N.Y.S.2d 694, lv. denied 68 N.Y.2d 1002, 510 N.Y.S.2d 1035, 503 N.E.2d 132;  cf. People v. Porter, 69 A.D.2d 1007, 416 N.Y.S.2d 146).   Viewing the evidence in the light most favorable to defendant, as we must (see People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225), we conclude that there is a reasonable view of the evidence that defendant intended to cause “physical injury” to the victim (§ 120.05[2] ), but not “serious physical injury” (§ 120.10[1] ), and thus the court should have granted defendant's request to charge the lesser included offense (see People v. Edwards, 16 A.D.3d 226, 227, 792 N.Y.S.2d 394;  Walker, 306 A.D.2d at 57, 761 N.Y.S.2d 35;  People v. Richardson, 215 A.D.2d 222, 626 N.Y.S.2d 480;  cf. People v. Tatta, 177 A.D.2d 674, 576 N.Y.S.2d 368, lv. denied 79 N.Y.2d 923, 582 N.Y.S.2d 83, 590 N.E.2d 1211).   We therefore modify the judgment by reversing that part convicting defendant of assault in the first degree, and we grant a new trial on count one of the indictment.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing that part convicting defendant of assault in the first degree and as modified the judgment is affirmed, and a new trial is granted on count one of the indictment.

MEMORANDUM: