People v. Baker

298 A.D.2d 104, 747 N.Y.S.2d 371, 2002 N.Y. App. Div. LEXIS 9173

Opinion

Judgment, Supreme Court, Bronx County (Peter Benitez, J.), rendered October 14, 1997, convicting defendant, after jury trial, of assault in the first degree and criminal possession of a weapon in the second degree, and sentencing her to concurrent terms of SVa to 11 years, unanimously affirmed.

Defendant’s challenge to the court’s instruction effectively informing the jury that the element of serious physical injury had been established as a matter of law is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that the charge was correct because defendant, expressly electing to pursue a defense of misidentification only, conceded the element and agreed to the instruction now at issue (see People v Flynn, 79 NY2d 879, 881; People v Lewis, 64 NY2d 1031, 1032). In any event, there was ample evidence of serious physical injury.

We perceive no basis for a reduction of sentence. Concur— Williams, P.J., Mazzarelli, Sullivan, Rosenberger and Gonzalez, JJ.