People v. Hop-Wah

Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: The People concede that the trial court erred by refusing to charge the lesser included offense of attempted assault in the second degree with respect to the charges contained in the first two counts of the indictment. We agree and, accordingly, modify the judgment to reverse the convictions on those two counts, vacate the sentences imposed thereon, and grant a new trial on those counts.

We affirm defendant’s conviction on the third count of the indictment. On appeal, defendant raises no claim that the court should have charged any lesser included offense as to this count, and any such claim would lack merit. Defendant’s contentions that the court erred in its instruction to the jury as to intent and that the District Attorney erred by failing to instruct the Grand Jury on the defense of justification also lack merit (see, People v Getch, 50 NY2d 456; People v Calbud, Inc., 49 NY2d 389). The remaining issue was not preserved for our review. (Appeal from judgment of Wyoming County Court, Newman, J.—assault, second degree.) Present—Callahan, J. P., Doerr, Denman, Green and Balio, JJ.