People v. Ramos (242 A.D.2d 510, 1997)

Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered February 2, 1995, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 15 years to life, unanimously affirmed.

Since defendant’s request to charge assault in the third degree as a lesser included offense of assault in the second degree (Penal Law § 120.05 [2]) was based on an entirely different theory (see, Penal Law § 120.00 [1]) than defendant’s current claim, that third degree assault should have been submitted since defendant recklessly caused physical injury (Penal Law § 120.00 [2]), the present claim is unpreserved for appellate review (CPL 300.50 [2]; People v Borrello, 52 NY2d 952; People v Sater, 201 AD2d 323, lv denied 83 NY2d 858), and we decline to review it in the interest of justice. Were we to review this claim, we would find that no reasonable view of the evidence adduced at trial could support a finding that defendant acted other than with intent to cause physical injury.

We conclude, on the existing record, that defendant received effective assistance of counsel (People v Baldi, 54 NY2d 137).

Defendant’s sentence was not based on any impermissible criteria and we perceive no abuse of sentencing discretion. Concur—Milonas, J. P., Nardelli, Rubin, Mazzarelli and Andrias, JJ.