The People of the State of New York, Respondent, v. Michael Miller, Appellant

The People of the State of New York, Respondent, v Michael Miller, Appellant. [MAJORITY] — Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered November 29, 1989, convicting him of attempted robbery in the second degree, assault in the second degree, and attempted grand larceny in the fourth degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Viewing the evidence adduced at trial in a light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). The trial court’s refusal to grant the defendant’s request to submit to the jury the charge of assault in the third degree as a lesser included offense of assault in the second degree, or felony assault, as defined in Penal Law § 120.05 (6), was proper. Assault in the third degree is not a lesser included offense of felony assault (People v Green, 56 NY2d 427, 431; People v Miguel, 53 NY2d 920, 923). Mangano, P. J., Thompson, Bracken and Copertino, JJ., concur.