People v. Wheeler

—Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered April 25, 1995, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the trial court erred in failing to charge the jury on assault in the third degree (Penal Law § 120.00 [2], [3]) as a lesser included offense is without merit. The evidence adduced at trial established that the defendant either acted intentionally, or acted reflexively— without any awareness, but there was no…