Opinion
KA 00-01824
October 1, 2002.
Appeal from a judgment of Oneida County Court (Donalty, J.), entered July 5, 2000, convicting defendant after a jury trial of, inter alia, assault in the second degree.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (DEANNA R. LAMB OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL A. ARCURI, DISTRICT ATTORNEY, UTICA (CARL J. BOYKIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant was convicted following a jury trial of, inter alia, assault in the second degree (Penal Law § 120.05) for causing physical injury to his wife by means of a dangerous instrument, to wit, a broom and/or broom handle. Contrary to defendant's contention, the evidence is legally sufficient to establish that at least some of the multiple injuries sustained by defendant's wife were caused by means of a "dangerous instrument" (§ 10.00 [13]). Although a broom is not inherently dangerous, here it was used to strike another person numerous times about the head, arms and back and thus was an instrument readily capable of causing serious physical injury ( see People v. Carter, 53 N.Y.2d 113, 116-117; People v. Wooden, 275 A.D.2d 935, 935, lv denied 96 N.Y.2d 740; People v. Flowers, 178 A.D.2d 682, 682, lv denied 79 N.Y.2d 947; see also People v. McKoy, 258 A.D.2d 950, lv denied 93 N.Y.2d 876). In addition, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621), we conclude that it is legally sufficient to establish that the victim sustained physical injury within the meaning of Penal Law § 10.00 (9) ( see People v. Greene, 70 N.Y.2d 860, 862-863; People v. LaDuca, 292 A.D.2d 851, 851-852, lv denied 98 N.Y.2d 652; People v. Conseillant, 289 A.D.2d 1048, lv denied 98 N.Y.2d 674; People v. Sullivan, 284 A.D.2d 917, 917-918, lv denied 96 N.Y.2d 942, 97 N.Y.2d 658). The sentence is neither unduly harsh nor severe.