Opinion
December 7, 1995
Appeal from the Supreme Court, New York County (Clifford Scott, J.).
The trial court properly declined to charge assault in the third degree as a lesser included offense of assault in the second degree, there being no reasonable view of the evidence that the braided belt used to pummel the victim was not a dangerous instrument within the meaning of Penal Law § 10.00 (13) ( see, People v Carter, 53 N.Y.2d 113; People v Rollins, 120 A.D.2d 896, lv denied 68 N.Y.2d 773) or that defendant did not use the belt in repeatedly striking the victim.
Defendant's objection to the relevance of the box cutter was insufficient to preserve his appellate claim that its prejudicial effect outweighed its probative value ( see, People v Pettigrew, 208 A.D.2d 365, lv denied 85 N.Y.2d 912), and we decline to review it in the interest of justice. In any event, we find no error since there was no argument that this was the same box cutter used in the attack and in view of the overwhelming evidence of defendant's participation in the assault ( see, People v Sims, 209 A.D.2d 192, lv denied 84 N.Y.2d 1015).
Concur — Sullivan, J.P., Ellerin, Wallach, Rubin and Mazzarelli, JJ.