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People v. Zayas

Appellate Division of the Supreme Court of New York, Second Department
May 2, 1988
140 A.D.2d 395 (N.Y. App. Div. 1988)

Opinion

May 2, 1988

Appeal from the Supreme Court, Queens County (Clabby, J.).


Ordered that the judgment is affirmed.

The defendant argues that the trial court erred in refusing to charge assault in the third degree (Penal Law § 120.00) as a lesser included offense of assault in the second degree (Penal Law § 120.05). Whenever a party submits a request for a lesser included charge, the court must supply that charge if it is theoretically impossible for the defendant to have committed the greater crime without having also committed the lesser, and a reasonable view of the evidence would permit the jury to conclude that the defendant committed the lesser crime, but not the greater (People v Glover, 57 N.Y.2d 61). While here the "impossibility" test was satisfied, there was no reasonable view of the evidence which would support a finding that the defendant committed assault in the third degree (Penal Law § 120.00) and not assault in the second degree (Penal Law § 120.05).

Even when the evidence is viewed in the light most favorable to the defendant (People v Glover, supra), the defendant's own testimony negates the element of intent. If the jury had chosen to believe the defendant, it would have found him not guilty of both assault in the second degree and assault in the third degree (cf., People v Wedgeworth, 104 A.D.2d 915, 916). Furthermore, "there was no rational basis upon which the jury could have selectively rejected portions of the People's case to reach the conclusion that the defendant committed [third degree assault (Penal Law § 120.00) but not second degree assault (Penal Law § 120.05)]" (People v Wedgeworth, supra, at 916, citing People v Scarborough, 49 N.Y.2d 364). The trial court accordingly properly refused to charge assault in the third degree since under these circumstances, doing so would have invited the jury to engage in sheer speculation (see, People v Scarborough, supra, at 371).

We have examined the defendant's remaining contention and find it to be without merit. Brown, J.P., Weinstein, Spatt and Balletta, JJ., concur.


Summaries of

People v. Zayas

Appellate Division of the Supreme Court of New York, Second Department
May 2, 1988
140 A.D.2d 395 (N.Y. App. Div. 1988)
Case details for

People v. Zayas

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NICHOLAS ZAYAS…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 2, 1988

Citations

140 A.D.2d 395 (N.Y. App. Div. 1988)

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