People v. Clarke

250 A.D.2d 619, 673 N.Y.S.2d 153, 1998 N.Y. App. Div. LEXIS 4871

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered November 18, 1996, convicting him of robbery in the first degree, burglary in the first degree (two counts), and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that reversible error was committed because of certain improper comments made by the prosecutor in summation is unpreserved for appellate review (see, CPL 470.05 [2]; People v Medina, 53 NY2d 951, 953). In any event, the prosecutor’s comments were within the bounds of fair response to the defendant’s position throughout the trial that there was no evidence which connected the defendant with the crime, and constituted fair comment on the evidence (see, People v Farrell, 228 AD2d 693; People v Thomas, 154 AD2d 928).

Contrary to the defendant’s contention, the evidence was legally sufficient to sustain the conviction of burglary in the first degree (see, Penal Law § 140.30 [2]). The complainant testified that during the course of the incident, the defendant inflicted blows to his head which caused head pain for a week, and bruises to the arm, which prevented him from working for a week. This testimony constituted legally sufficient evidence that the complainant suffered a “physical injury” within the meaning of Penal Law § 10.00 (9) (see, People v Rogers, 138 AD2d 419).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). Thompson, J. P., Santucci, Friedmann and Florio, JJ., concur.