People v. Rivera

223 A.D.2d 514, 637 N.Y.S.2d 377, 1996 N.Y. App. Div. LEXIS 712

Opinion

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered April 27, 1995, convicting defendant, after a nonjury trial, of assault in the second degree, and sentencing him to a prison term of 90 days and 5 years probation, unanimously affirmed. This matter is remitted to Supreme Court, Bronx County, for further proceedings pursuant to CPL 460.50 (5).

The court’s decision was not against the weight of the evidence, and was supported by evidence sufficient to disprove the defense of justification beyond a reasonable doubt. "[P]hysical injury” (Penal Law § 120.05 [2]) was sufficiently established by evidence that the victim was struck twice in the head with a stick causing bruises and a cut on his forehead that required three stitches and resulted in a permanent scar, and use of a "dangerous instrument” (ibid.) was sufficiently established by the complainant’s testimony that he saw a "brown stick” approximately 15 to 16 inches long and eyewitnesses’ testimony describing a foot-long dark object with a strap hanging from it like a "billy stick” or a "black, long object”. Concur—Sullivan, J. P., Wallach, Ross and Williams, JJ.