People v. Smith

• Decision Date: 30 December 1996
• Citation: 651 N.Y.S.2d 830,234 A.D.2d 997
• Parties: PEOPLE of the State of New York, Respondent, v. Keith SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 830

651 N.Y.S.2d 830

234 A.D.2d 997

PEOPLE of the State of New York, Respondent, v. Keith SMITH, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 30, 1996.

Edward J. Nowak by James Eckert, Rochester, for Appellant.

Howard R. Relin by Alan Cruikshawk, Rochester, for Respondent.

Before DENMAN, P.J., and GREEN, FALLON, DOERR and BALIO, JJ.

MEMORANDUM.

Defendant appeals from a judgment convicting him of two counts of reckless endangerment in the first degree. He contends that the court erred in denying his request to charge reckless endangerment in the second degree as a lesser included offense of both counts. We disagree. Although it is theoretically impossible to commit reckless endangerment in the first degree without also committing reckless endangerment in the second degree, there is no reasonable view of the evidence that defendant committed the lesser offense but not the greater (cf., CPL 300.50[1]; People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376). The evidence establishes that defendant shot once in the direction of a public street and that the bullet grazed the forehead of one victim some 10 to 12 feet away and struck a stopped vehicle that was occupied by another victim. There is no reasonable view of the evidence that defendant's conduct created a substantial risk of serious physical injury to each victim but did not create a grave risk of death.

Judgment unanimously affirmed.