PEOPLE v. McKELVEY

Ordered that the judgment is affirmed.

Contrary to the defendant's contentions, he was not deprived of a fair trial by the court's submission to the jury of the crime of manslaughter in the first degree (Penal Law § 125.20) as a lesser included offense of the crime of murder in the second degree (Penal Law § 125.25) charged in the indictment (see, CPL 300.50; People v Green, 56 N.Y.2d 427, 433-434, rearg denied 57 N.Y.2d 775; People v Stanfield, 36 N.Y.2d 467). Viewing the evidence adduced at the trial in a light most favorable to the defendant (see, People v Johnson, 45 N.Y.2d 546), it reasonably supported a finding that when he stabbed his victim, he acted with the intent either to cause serious physical injury or with the intent to cause death (see, People v Butler, 57 N.Y.2d 664; People v Mills, 105 A.D.2d 759; cf., People v Asan, 22 N.Y.2d 526). As the jury could have reasonably found that the defendant committed the lesser but not the greater crime (see, People v Glover, 57 N.Y.2d 61), the submission of the lesser included offense of manslaughter in the first degree was proper.

We have reviewed the defendant's remaining contention that the sentence was excessive and find it to be without merit (see, People v Suitte, 90 A.D.2d 80). Brown, J.P., Lawrence, Kunzeman and Kooper, JJ., concur.