People v. Ganz

224 A.D.2d 190, 637 N.Y.S.2d 136, 1996 N.Y. App. Div. LEXIS 817

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1996
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Richard Price, J.), rendered June 4,1993, convicting defendant, after a jury trial, of robbery in the second degree and assault in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 61/s to 13 years and 3 to 6 years, respectively, unanimously affirmed.

Complainant’s testimony, corroborated by two police witnesses, that she sustained a red mark under her eye and suffered permanent hair loss as a result of the incident, and that she temporarily lost consciousness and felt "a lot of pain” in her back for over one week, established a "physical injury” (People v Bailey, 178 AD2d 846, 848, lv denied 79 NY2d 943).

The court properly declined to submit a charge of petit larceny, as a lesser included offense of robbery in the second degree, since there was no rational view of the evidence which would support a conclusion that he committed the former, but not the latter, crime (see, People v Scarborough, 49 NY2d 364, 371).

Defendant’s remaining argument is unpreserved for review, and we decline to review it in the interest of justice. Concur— Sullivan, J. P., Wallach, Rubin and Tom, JJ.