People v. Cates

*554The court properly declined to charge assault in the third degree as a lesser included offense since there was no reasonable view of the evidence, viewed in a light most favorable to defendant, that he was guilty of that charge but not of either murder or manslaughter. Nothing in either the People’s case or defendant’s testimony supported a theory that defendant participated in the vicious beating of the victim, but was merely a bystander to the victim’s immediately ensuing death by strangulation (see People v Martinez, 30 AD3d 353 [2006], lv denied 7 NY3d 868 [2006]). Under the evidence,…