Opinion
April 18, 1977
Appeal by the defendant from a judgment of the Supreme Court, Westchester County, rendered June 11, 1976, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence. Judgment affirmed. This case is remitted to the Supreme Court, Westchester County, for further proceedings pursuant to CPL 460.50 (subd 5). The proof of the defendant-appellant's guilt was overwhelming. One sentence of the Trial Judge's charge to the jury concerning the definition of "recklessly" was inadequately worded and, standing by itself, was erroneous. However, in the context of the entire charge on that subject, the error, if any, was de minimis, particularly in the light of the overwhelming proof of guilt (see People v Crimmins, 36 N.Y.2d 230; People v Ketchum, 35 N.Y.2d 740). The Trial Judge's charge pertaining to conduct "evincing a depraved indifference to human life" and "intoxication" was not in error. We further note that defense counsel took no exception regarding these aspects of the charge, and did not request any further instructions with respect thereto. Cohalan, Acting P.J., Margett, Damiani and Mollen, JJ., concur.