People v. Ebron

267 A.D.2d 396, 700 N.Y.S.2d 731, 1999 N.Y. App. Div. LEXIS 13144

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered September 11, 1998, convicting him of assault in the third degree (two counts), criminal possession of a weapon in the fourth degree, endangering the welfare of a child, criminal contempt in the second degree, and harassment in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s claim that the evidence of “physical injury” (Penal Law § 10.00 [9]) was insufficient to support his conviction for assault in the third degree is unpreserved for appellate review, as he never raised this specific issue at trial (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10; People v Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we are satisfied that the evidence of “substantial pain” necessary to establish “physical injury” within the meaning of Penal Law § 10.00 (9) was legally sufficient to establish the defendant’s guilt of assault in the third degree beyond a reasonable doubt (see, People v Clarke, 250 AD2d 619; People v Azadian, 195 AD2d 565). Thompson, J. P., Krausman, H. Miller and Schmidt, JJ., concur.