Opinion
November 29, 2005.
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 one year, respectively, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and remanding for resentencing, and otherwise affirmed.
Before: Friedman, J.P., Sullivan, Nardelli, Williams and Sweeny, JJ., concur.
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 AD2d 217, lv denied 96 NY2d 866).
Defendant was adjudicated a second felony offender on the basis of a prior conviction under New Jersey law for aggravated assault (NJ Stat Ann § 2C:12-1 [b] [1]). However, that offense can be committed through nonintentional 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 AD2d 86, 87) 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 v. Joint Bar Assn. Grievance Commn. for Second Eleventh Jud. Dists., 52 NY2d 479, 482; Matter of Chu, 42 NY2d 490, 492-493).