People v. Arias

286 A.D.2d 401, 732 N.Y.S.2d 171, 2001 N.Y. App. Div. LEXIS 8001

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 13, 2001
• Status: Published

Opinion

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Kohm, J.), rendered January 9, 1998, convicting him of robbery in the third degree, assault in the second degree, and assault in the third degree under Indictment No. 613/97, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court (Appelman, J.), rendered February 5, 1998, revoking a sentence of probation previously imposed by the same court (Finnegan, J.), under Indictment No. 4884/95, upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of assault in the second degree.

Ordered that the judgment and the amended judgment are affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that the evidence of “substantial pain” which was adduced to establish the existence of “physical injury” within the meaning of Penal Law § 10.00 (9), was legally sufficient to establish the defendant’s guilt of assault in the second degree and assault in the third degree beyond a reasonable doubt (see, People v Evans, 250 AD2d 484; People v Belk, 241 AD2d 552, 553; People v Sloan, 202 AD2d 525). Moreover, upon the exercise of our factual review power, we are satisfied that the convictions of assault in the second degree and assault in the third degree were not against the weight of the evidence (see, CPL 470.15 [5]).

In light of the defendant’s criminal history, the sentence imposed under Indictment No. 4884/95 was not excessive (see, People v Suitte, 90 AD2d 80). Krausman, J. P., McGinity, Schmidt and Adams, JJ., concur.