People v. Torres

211 A.D.2d 509, 621 N.Y.S.2d 340, 1995 N.Y. App. Div. LEXIS 390

Opinion

Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered April 28, 1993, convicting defendant, after a jury trial, of assault in the second degree and criminal mischief in the fourth degree, and sentencing him, as a second felony offender, to a term of 2 Vi to 5 years and a conditional discharge, respectively, unanimously affirmed.

The People’s evidence established that defendant, using a child’s toy baseball bat, hit his step-daughter over the head twice and her arm once, causing contusions, headaches and pain to the arm that restricted her use of the arm for a significant period of time and resulted in her absence from work for several days. The bat, under the circumstances in which it was used, was readily capable of causing serious physical injury (Penal Law § 10.00 [10], [13]), and thus satisfied the definition of "dangerous instrument” for purposes of establishing the legal sufficiency of the second-degree assault charge (Penal Law § 120.05 [2]). We have considered defendant’s remaining contentions and find them to be without merit. Concur—Murphy, P. J., Sullivan, Wallach, Nardelli and Tom, JJ.