People v. Bennett

—Judgment unanimously affirmed. Memorandum: Supreme Court did not err in refusing to charge assault in the third degree (Penal Law § 120.00 [3]) as a lesser included offense of assault in the first degree (Penal Law § 120.10 [1]). There is no reasonable view of the evidence from which the jury could conclude that defendant committed the lesser but not the greater offense (see, People v Glover, 57 NY2d 61, 63). In any event, defendant was convicted of the higher offense of assault in the first degree and acquitted of the two lower offenses of assault in the *1057second degree (Penal Law § 120.05 [2], [4]) charged as lesser included offenses. Were there error in failing to charge the lesser offense of assault in the third degree it, would be harmless (see, People v Green, 56 NY2d 427, 435). (Appeal from Judgment of Supreme Court, Monroe County, Doyle, J.—Assault, 1st Degree.) Present—Green, J. P., Balio, Fallon, Callahan and Davis, JJ.