PEOPLE v. BAKER

Defendant's challenge to the court's instruction effectively informing the jury that the element of serious physical injury had been established as a matter of law is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the charge was correct because defendant, expressly electing to pursue a defense of misidentification only, conceded the element and agreed to the instruction now at issue (see People v. Flynn, 79 N.Y.2d 879, 881; People v. Lewis, 64 N.Y.2d 1031, 1032). In any event, there was ample evidence of serious physical injury.

We perceive no basis for a reduction of sentence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.