Opinion
December 3, 1990
Appeal from the Supreme Court, Queens County (Pitaro, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The defendant's contention that the People committed a Brady violation (see, Brady v. Maryland, 373 U.S. 83, 87-88) when they delayed in turning over to the defense a purportedly exculpatory statement made by a nontestifying witness which was written on the back of a police report, has not been preserved for appellate review since no objection on this basis was made before the trial court (see, People v. McKay, 162 A.D.2d 146).
Moreover, the defendant's contention that the court erred when it refused to charge the jury with respect to assault in the third degree as a lesser included offense of assault in the second degree is without merit. There is no reasonable view of the evidence presented at trial which would permit the jury to conclude that the defendant committed the lesser but not the greater offense (see, People v. Green, 56 N.Y.2d 427, 429-430). The evidence showed that the defendant either intended to cause or did, in fact, cause physical injury to the complainant with the use of a deadly weapon or dangerous instrument, namely, a knife (see, Penal Law § 120.05 [assault in the second degree]).
The sentence imposed on the defendant was neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80).
We have reviewed the defendant's remaining contentions and find them to be without merit. In any event, any error was harmless beyond a reasonable doubt (see, People v. Whaley, 144 A.D.2d 510; People v. Griffin, 126 A.D.2d 743, 744; People v. Crimmins, 36 N.Y.2d 230). Balletta, J.P., Miller, O'Brien and Ritter, JJ., concur.