Opinion
230
March 15, 2002.
Appeal from a judgment of Ontario County Court (Doran, J.), entered November 2, 2000, convicting defendant after a jury trial of assault in the second degree.
Zimmerman Tyo, Shortsville (John E. Tyo of counsel), for defendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), for plaintiff-respondent.
PRESENT: PIGOTT, JR., P.J., HAYES, WISNER, HURLBUTT, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him of assault in the second degree (Penal Law § 120.05), defendant contends that County Court erred in failing to instruct the jury that it could consider the lesser included offense of assault in the third degree (Penal Law § 120.00). We disagree. The People presented uncontroverted evidence that defendant inflicted blows to the victim's head with a tire iron, causing open wounds that required stitches. The tire iron was "readily capable of causing * * * serious physical injury" and thus under the circumstances in which it was used constituted a dangerous instrument (Penal Law § 10.00; see, People v. Carter, 53 N.Y.2d 113, 116). In the absence of evidence of injuries caused by anything other than a dangerous instrument, there is no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater ( see, People v. Caban, 181 A.D.2d 536, lv denied 79 N.Y.2d 1047; see generally, People v. Glover, 57 N.Y.2d 61,63).