The People of the State of New York, Respondent, v. Douglas E. Lee, Appellant

The People of the State of New York, Respondent, v Douglas E. Lee, Appellant. [634 NYS2d 326] [MAJORITY] —Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him, following a jury trial, of attempted arson in the second degree, defendant argues that County Court erred in denying his motion at the close of proof to dismiss the attempted arson count. Defendant argues that, because the proof established that an arson had been committed, the court should have dismissed the count charging only attempted arson. We disagree. Attempted arson is a lesser included offense of arson (see, CPL 1.20 [37]). Thus, if the proof established that an act of arson was committed, then it concomitantly established that an attempt to commit an act of arson was committed (see, Penal Law § 110.00; People v Dlugash, 41 NY2d 725, 732). Neither defendant’s right to notice of the charges nor the Grand Jury’s exclusive power to determine them was violated (see, People v Grega, 72 NY2d 489, 496). We further reject defendant’s contention that the proof was insufficient (see, People v Williams, 84 NY2d 925, 926). Defendant’s sentence is neither unduly harsh nor severe. (Appeal from Judgment of Erie County Court, Rogowski, J.—Attempted Arson, 2nd Degree.) Present—Pine, J. P., Fallon, Callahan, Doerr and Davis, JJ.