Opinion
September 30, 1997
Appeal from Supreme Court, New York County (Bernard Fried, J.).
Since defendant's request to charge assault in the third degree as a lesser included offense of assault in the second degree (Penal Law § 120.05) was based on an entirely different theory (see, Penal Law § 120.00) than defendant's current claim, that third degree assault should have been submitted since defendant recklessly caused physical injury (Penal Law § 120.00), the present claim is unpreserved for appellate review (CPL 300.50; People v. Borrello, 52 N.Y.2d 952; People v Sater, 201 A.D.2d 323, lv denied 83 N.Y.2d 858), and we decline to review it in the interest of justice. Were we to review this claim, we would find that no reasonable view of the evidence adduced at trial could support a finding that defendant acted other than with intent to cause physical injury.
We conclude, on the existing record, that defendant received effective assistance of counsel ( People v. Baldi, 54 N.Y.2d 137). Defendant's sentence was not based on any impermissible criteria and we perceive no abuse of sentencing discretion.
Concur — Milonas, J.P., Nardelli, Rubin, Mazzarelli and Andrias, JJ.