
    The People of the State of New York, Respondent, v James Lee Bones, Appellant.
   — 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). 11 We have examined defendant’s other contentions and find them to be without merit. (Appeal from judgment of Supreme Court, Erie County, Mintz, J. — assault, first degree.) Present — Hancock, Jr., J. P., Doerr, Denman, Green and Moule, JJ.  