People v. Wade

232 A.D.2d 290, 648 N.Y.S.2d 563, 1996 N.Y. App. Div. LEXIS 10498

Opinion

—Judgment, Supreme Court, New York County (Frederic Berman, J.), rendered June 24, 1994, convicting defendant, after a nonjury trial, of assault in the second degree and endangering the welfare of a child, and sentencing him to concurrent terms of 5 years probation and 4 months of intermittent imprisonment, is unanimously affirmed.

Defendant was charged with assault in the second degree, pursuant to Penal Law § 120.05 (2), in that he allegedly struck his five-year-old daughter on the back, over her clothing, with the wire handle of a flyswatter allegedly a "dangerous instrument.” A "dangerous instrument,” as here pertinent, is one "which, under the circumstances in which it is used * * * is readily capable of causing * * * serious physical injury” (Penal Law § 10.00 [13]). "Serious physical injury”, as here pertinent, means physical injury which causes "serious and protracted disfigurement” (Penal Law § 10.00 [10]). We have examined the record, including photographs of the injuries inflicted, and conclude that physical injury was established and that, under the circumstances in which it was used, the handle of the flyswatter was readily capable of causing serious physical injury.

The trial court’s determination to have the six-year-old complainant testify under oath is supported by the record. Such a determination is primarily an issue for the trial court, and will not be disturbed on appeal unless it is clearly erroneous (People v Nisoff, 36 NY2d 560, 566; People v Parks, 41 NY2d 36, 46). We have considered defendant’s remaining contentions and find them to be without merit. Concur—Rosenberger, J. P., Ellerin, Williams, Mazzarelli and Andrias, JJ.