PEOPLE v. JOHNSON

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment of conviction after a jury trial, of assault in the second degree (Penal Law § 120.05). The conviction stems from a barroom incident when defendant struck another patron with a tree branch and kicked him repeatedly, causing the victim to suffer a broken jaw and seven displaced teeth.

On cross-examination the prosecutor questioned defendant concerning the absence of prearrest and postarrest claims of self-defense and/or intoxication and on summation commented on defendant's pretrial silence. Such questioning and commentary violated defendant's 5th Amendment rights ( Doyle v. Ohio, 426 U.S. 610, 617-618; People v. Conyers, 52 N.Y.2d 454, 456-457; People v Artis, 67 A.D.2d 981; People v. Smoot, 59 A.D.2d 898). Defense counsel, however, did not object to the cross-examination or summation and thus has failed to preserve the issue for appellate review ( see, CPL 470.05; People v. Thomas, 50 N.Y.2d 467, 473). In view of the overwhelming evidence of guilt we decline to reach the issue here in the interest of justice ( see, CPL 470.15 [a]; People v. Thomas, supra, p 473; People v Anderson, 99 A.D.2d 560).

The court did not err when it refused to charge criminally negligent assault in the third degree (Penal Law § 120.00) as a lesser included offense. Since the uncontradicted testimony shows that the defendant was engaged in intentional conduct, there is no reasonable view of the evidence in the record which would support a finding of criminal negligence ( People v Wright, 105 A.D.2d 1088; People v. Cash, 81 A.D.2d 1002). We have reviewed defendant's other claims of error and find them to be without merit.