Judgment unanimously affirmed. Memorandum: In the course of a street altercation, defendant fired a handgun into a group of people causing serious injuries to the victim. He was indicted and convicted of assault in the first degree (Penal Law, § 120.10, subd 1) and criminal use of a firearm in the second degree (Penal Law, § 265.08). On this appeal, defendant for the first time argues that it was error to use the first degree assault charge — an armed felony — as a class C violent felony offense (Penal Law, § 70.02, subd 1, par [b]) for the purpose of establishing the necessary violent felony predicate for criminal use of a firearm, second degree (Penal Law, § 265.08). There is merit to this contention (see People v. Horne, 121 Misc.2d 389; People v. Serrano, 119 Misc.2d 321). However, defendant failed to move against the indictment or to take exception to the submission to the jury of the criminal use of a firearm charge. Thus, the issue has not been preserved for appeal (CPL 470.05, subd 2).
¶ We have examined defendant's other contentions and find them to be without merit.