People v. Rivera

207 A.D.2d 732, 616 N.Y.S.2d 610, 1994 N.Y. App. Div. LEXIS 8976

Opinion

—Judgment, Supreme Court, New York County (Stephen Barrett, J.), rendered November 29, 1989, convicting defendant, after a jury trial, of two counts of burglary in the first degree, and robbery in the first and second degrees, and sentencing him, as a second felony offender, to concurrent terms of 8 to 16 years (first 3 counts) and 5 to 10 years (4th count), respectively, unanimously affirmed.

Defendant and others robbed the victim in his apartment and burglarized the contents of the apartment; the victim recognized the defendant from the building. The defendant hit the victim on the head with a beer bottle, which drew blood and caused physical pain to the victim for several days, and, while displaying a knife, kicked him in the back, knocking the victim to the ground, which caused additional pain. As a result of such pain, the victim was forced to miss three days of work. The evidence of physical injury was legally sufficient (People v Usman, 181 AD2d 628, lv denied 79 NY2d 1055; People v Gerino, 157 AD2d 570).

By failing to challenge the "no adverse inference” instruction provided at defendant’s request pursuant to CPL 300.10 (2), either on statutory (People v Autry, 75 NY2d 836) or constitutional (People v Iannelli, 69 NY2d 684, cert denied 482 US 914) grounds, defendant has failed to preserve any of his present claims. Since the instruction conveyed the appropriate principles of law (People v Nunez, 182 AD2d 527, lv denied 80 NY2d 836), we decline to review in the interest of justice. Concur—Sullivan, J. P., Carro, Ellerin, Kupferman and Asch, JJ.