People v. Fenske

—Appeal from a judgment of Ontario County Court (Doran, J.), entered May 2, 2001, convicting defendant after a jury trial of, inter alia, assault in the third degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a jury trial of assault in the third degree (Penal Law § 120.00 [2]), endangering the welfare of a child (§ 260.10 [1]), and criminal contempt in the second degree (§ 215.50 [3]). Defendant was acquitted of one count of assault in the second degree (§ 120.05 [former (9)]). We reject defendant’s contention that County Court erred in refusing to give a missing witness charge where the People failed to call the four-year-old victim as a witness. Contrary to defendant’s contention, a four-year-old child “cannot be said to be knowledgeable about a material issue in a case” (People v Kirkby, 295 AD2d 929, 930). We further reject defendant’s contention that the court erred in granting the People’s request to charge the jury with respect to assault in the third degree (reckless assault) as a lesser included offense of assault in the second degree (intentional assault). The testimony at trial reveals that the victim’s injuries may have resulted from the victim and defendant engaging in “slap-boxing.” Thus, “a reasonable view of the evidence * * * would support a finding that the defendant committed [the] lesser offense but did not commit the greater” (CPL 300.50 [1]). We reject defendant’s contention that the verdict is against the weight of the evidence and, to the extent that defendant contends that his assault conviction is not supported by legally sufficient evidence, we reject that contention as well (see generally People v Bleakley, 69 NY2d 490, 495). There is a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime charged” (id.). We have reviewed defendant’s remaining contentions and conclude that they are without merit. Present — Green, J.P., Wisner, Scudder, Burns and Lawton, JJ.