People v. Monroe , 118 A.D.2d 595 ( 1986 )

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Mayer, J.), rendered May 12, 1982, convicting him of assault in the first degree and criminal use of a firearm in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The defendant fired a shotgun at the complainant, hitting him in the back as he was running away. He was indicted, inter alia, for assault in the first degree (Penal Law § 120.10 [1]) and criminal use of a firearm in the second degree (Penal Law § 265.08), and was convicted of those charges after a jury trial. On this appeal, the defendant argues for the first time that it was error to charge him with criminal use of a firearm in the second degree predicated on the assault in the first degree charge, because the latter charge included the element that the defendant displayed or possessed a deadly weapon, and was therefore already an armed felony. The issue of whether criminal use of a firearm in the second degree should have been charged was not preserved by the defendant for review on appeal.

The defendant’s remaining contentions have been considered and found to be without merit. Lawrence, J. P., Eiber, Kunzeman and Kooper, JJ., concur.