State of New York MEMORANDUM Court of Appeals This memorandum is uncorrected and subject to revision before publication in the New York Reports.

No. 68 SSM 14 The People &c., Respondent, v. Luis Serrano, Appellant.

Submitted by Steven M. Sharp, for appellant.

Submitted by Peter H. Willis, for respondent.

MEMORANDUM: The order of the Appellate Division should be affirmed. County Court properly denied defendant’s request to charge assault in the third degree (Penal Law § 120.00 [1]) as a lesser included offense of assault in the first degree (see People v Almonte, 33 NY3d -1- -2- SSM No. 14 1083, 1084 [2019]). Furthermore, defendant received effective assistance of counsel (see People v Benevento, 91 NY2d 708, 712-715 [1998]). Defendant’s remaining contentions, in particular his challenges to the admission of certain testimony, are unpreserved or waived.

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a memorandum. Chief Judge DiFiore and Judges Rivera, Garcia, Wilson, Singas, Cannataro and Troutman concur.

Decided June 16, 2022

-2-