People v. Van Norstrand

—Judgment affirmed. Memorandum: Defendant was convicted of assault in the first degree as the result of injuries he caused to his four-month-old son. The trial court did not err by denying defendant’s request to submit to the jury the lesser included offense of assault in the third degree. Viewing the evidence in the light most favorable to defendant, we conclude that there is no reasonable view of the evidence to support a finding that defendant acted recklessly and not with depraved indifference to human life (see, People v Randolph, 81 NY2d 868, 869; People v Glover, 57 NY2d 61, 63). Defendant admitted that he shook the infant "pretty hard”, squeezing the infant’s ribs with what defendant described as "naturally strong” hands. Defendant then struck the infant’s face against a couch. The infant was comatose when he was taken to the hospital and was placed upon a respirator. The infant sustained permanent visual and brain damage as the result of severe swelling and hemorrhaging of the brain. Medical evidence proved that the injuries were life-threatening and that a very severe amount of force was necessary to inflict the injuries. The evidence demonstrates that defendant’s conduct evinced a depraved indifference to human life, and a finding that he acted only recklessly would not be reasonable (see, People v Nix, 173 AD2d 285, lv denied 78 NY2d 971). We further conclude that the evidence is sufficient to support the conviction (see, People v Bleakley, 69 NY2d 490). We decline to modify defendant’s sentence in the interest of justice. We have examined the remaining issues raised by defendant and find them to be unpreserved and we decline to reach them in the interest of justice. 801 All concur except Pine and Fallon, JJ., who dissent and vote to reverse in the following Memorandum.