PEOPLE v. BASCIANO

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

The PEOPLE of the State of New York, Respondent, v. Steven BASCIANO, Defendant-Appellant.

Decided: September 25, 2008

TOM, J.P., MAZZARELLI, FRIEDMAN, WILLIAMS, MOSKOWITZ, JJ. James Kousouros, Kew Gardens, for appellant. Robert T. Johnson, District Attorney, Bronx (Cynthia A. Carlson of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered June 17, 2007, convicting defendant, after a jury verdict, of assault in the second degree, and sentencing him to a term of 2 1/2 years, unanimously affirmed.

 The court properly granted the People's request to submit second-degree assault under Penal Law § 120.05(1)(causing serious physical injury) to the jury as a lesser included offense of first-degree assault under Penal Law § 120.10(1)(causing serious physical injury by means of a dangerous instrument).   There was a reasonable view of the evidence (see People v. Negron, 91 N.Y.2d 788, 676 N.Y.S.2d 520, 699 N.E.2d 32 [1998] ) that defendant seriously injured the victim by means of his fist, rather than by means of an unidentified hard object as set forth in the indictment.   Indeed, such a view was advanced by defendant in his cross-examination of the People's witnesses.   Since the indictment necessarily contained the lesser included offense, there is no merit to defendant's arguments that the court constructively amended the indictment or that the People impermissibly changed their theory of prosecution (see People v. Gouyagadosh, 295 A.D.2d 246, 247, 743 N.Y.S.2d 862 [2002];  People v. Udzinski, 146 A.D.2d 245, 254, 541 N.Y.S.2d 9 [1989], lv. denied 74 N.Y.2d 853, 546 N.Y.S.2d 1018, 546 N.E.2d 201 [1989] ).