Argued February 13, 1997
Decided March 27, 1997
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 7, 1995, which affirmed a judgment of the Supreme Court (Clifford Scott, J.), rendered in New York County upon a verdict convicting defendant of assault in the second degree (two counts).
At defendant's trial, there was evidence that the complainant had been pummeled with a braided belt wrapped around his attacker's hand. The trial court refused defendant's request to charge the jury on the lesser included offense of assault in the third degree, concluding that no reasonable view of the evidence supported a finding that defendant committed the lesser offense but not the greater; however, the court did instruct the jury that it must determine as a factual matter whether the belt constituted a "dangerous instrument."
Shearman Sterling, New York City ( Stephen M. Cowherd of counsel) and Paul Skip Laisure, Daniel A. Warshawsky and Richard M. Greenberg, for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City ( Richard Nahas and Morrie I. Kleinbart of counsel), for respondent.
People v Curtis, 222 A.D.2d 237, affirmed.
The order of the Appellate Division should be affirmed.
Defendant was convicted after a jury trial of two counts of assault in the second degree. The Appellate Division affirmed the judgment and a Judge of this Court granted leave to appeal. We now affirm. The courts below correctly concluded that no reasonable view of the evidence supported the requested charge-down to third degree assault under all the circumstances of the evidence adduced in this case, including the nature, manner and use of the belt ( see, CPL 300.50). The trial court's unchallenged instruction to the jury concerning its fact-finding responsibility with respect to the dangerous instrumentality element was necessary to satisfy the requirement that the People prove all elements of the crime beyond a reasonable doubt. The instruction did not create a defense entitlement to a charge-down to assault in the third degree ( see, People v Butler, 84 N.Y.2d 627, 630).
We have considered the other issues tendered to this Court and are satisfied that they are meritless.
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.
Order affirmed in a memorandum.