People v. Alexander

Judgment unanimously affirmed. Memorandum: Defendant’s primary contention on appeal is that the trial court erred in refusing to charge assault in the third degree (Penal Law § 120.00 [2]) as a lesser included offense of assault in the second degree (Penal Law § 120.05 [7]). Assault in the third degree (Penal Law § 120.00 [2]) can theoretically be a lesser included offense of assault in the second degree (Penal Law § 120.05 [7]; see, People v Green, 56 NY2d 427, 435, rearg denied 57 NY2d 775; People v Collins, 86 AD2d 616; cf., People ex rel. Gray v Tekben, 57 NY2d 651, 653). From our review…