Opinion
33
January 24, 2002
Judgment, Supreme Court, Bronx County (Michael Gross, J.), rendered April 29, 1999, convicting defendant, after a jury trial, of attempted murder in the second degree and rape in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 25 years and 1 to 4 years, respectively, unanimously affirmed
DAVID S. WEISEL, for Respondent,
SUSAN EPSTEIN, for Defendant-Appellant.
Before: Nardelli, J.P., Tom, Sullivan, Ellerin, Rubin, JJ
Review of defendant's claim that second-degree assault under a theory of recklessness (Penal Law § 120.05) should have been charged as a lesser included offense of first-degree assault is foreclosed, since the jury found defendant guilty of attempted murder in the second degree and, pursuant to the court's instructions, which the jury presumably followed, it had no occasion to consider the first-degree assault count submitted in the alternative (see, People v. Johnson, 87 N.Y.2d 357, 361; People v. Boettcher, 69 N.Y.2d 174, 180-181; People v. Falcon, 281 A.D.2d 368, lv denied 96 N.Y.2d 901)
We perceive no basis for a reduction of sentence
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT