People v. Durant

190 A.D.2d 615, 593 N.Y.S.2d 819, 1993 N.Y. App. Div. LEXIS 1651

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1993
• Status: Published

Opinion

— Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered May 9, 1991, convicting defendant, after a jury trial, of robbery in the second degree, assault in the second degree and grand larceny in the fourth degree, and sentencing her as a second felony offender to concurrent terms of 3 to 6, 2 Vi to 5, and 2 to 4 years, respectively, unanimously affirmed.

Defendant, acting with an unapprehended accomplice, was apprehended after she stole a wallet containing cash from the victim’s shoulder bag in a store. During a struggle with a security guard, she bit him in the hand and scratched his arm. At trial, this complainant testified to his substantial pain, that he was transported to a hospital by ambulance, that a tetanus shot was required, and that the use of his arm was restricted for the following two weeks. A responding police officer testified to his observation that the bite mark was bleeding and that the security guard was visibly upset about his injuries. This evidence provided sufficiently credible and objective proof of substantial pain with respect to the assault count to submit the question to the jury (see, Matter of Philip A., 49 NY2d 198, 200; People v Soto, 170 AD2d 705, lv denied 77 NY2d 967), and we find no reason to disturb the jury’s findings on appeal.

Defendant’s challenges to the court’s supplemental instructions on substantial pain and on the element of force for the robbery count are unpreserved for review as a matter of law (People v Robinson, 36 NY2d 224), and we decline to review in the interest of justice. If we were to review, we would find the claims to be meritless. Concur — Milonas, J. P., Ellerin, Kassal and Rubin, JJ.