People v. Johnson

Defendant’s sole argument on appeal is that the trial court’s refusal to charge assault in the third degree as a lesser included offense of assault in the second degree deprived him of a fair trial. Since it is theoretically impossible to commit assault in the second degree under Penal Law § 120.05 (2) without at the same time committing assault in the third degree under Penal Law § 120.00 (1) (see, People v Fasano, 107 AD2d 1052), the defendant satisfied the first prong of the Glover test (see, People v Glover, 57 NY2d 61). However, since on this record there was no reasonable view of the…