        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1305
KA 12-01004
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARK L. FELDHOUSEN, DEFENDANT-APPELLANT.


JON L. WILSON, LOCKPORT (LEONARD G. TILNEY, JR., OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered June 22, 2011. The judgment convicted
defendant, upon a jury verdict, of assault in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of assault in the third degree (Penal Law § 120.00
[2]). Defendant contends that County Court erred in charging assault
in the third degree as a lesser included offense of assault in the
second degree (Penal Law § 120.05 [2]) because there is no reasonable
view of the evidence that could support a finding that defendant did
not act intentionally. Inasmuch as defendant objected to that charge
on a different ground at trial, he failed to preserve his current
contention for our review (see CPL 470.05 [2]; People v Autar, 54 AD3d
609, lv denied 11 NY3d 922).

     In any event, defendant’s contention lacks merit. The court
properly charged the lesser included offense of assault in the third
degree (Penal Law § 120.00 [2]) because there is a reasonable view of
the evidence to support a finding that defendant committed that crime
(see generally People v Glover, 57 NY2d 61, 63). Based upon the
testimony of defendant and the victim, the jury could rationally
conclude that defendant did not intend to cause physical injury to the
victim but, instead, consciously disregarded the substantial and
unjustifiable risk that his physical contact with the victim would
cause physical injury (see §§ 15.05 [3], 120.00 [2]). The fact that
defendant acted deliberately “does not necessarily preclude a finding
of recklessness” (People v Lora, 85 AD3d 487, 492, appeal dismissed 18
                              -2-                 1305
                                             KA 12-01004

NY3d 829).




Entered:   February 1, 2013         Frances E. Cafarell
                                    Clerk of the Court
