People v. Johnson

Judgment unanimously affirmed. Memorandum: In the first count of the indictment, defendant was charged with assault in the second degree (Penal Law § 120.05 [1]) for causing serious physical injury to another while "acting in concert” with five other persons. At trial, defendant requested the court to charge assault in the third degree (Penal Law § 120.00 [1]) as a lesser included offense. The trial court denied defendant’s request based upon his actions in concert with the other persons who savagely beat the victim.

The first prong of the Glover test (see, People v Glover, 57 *1117NY2d 61) is…