Opinion
Argued May 27, 1999
July 19, 1999
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered June 25, 1996, convicting him of rape in the second degree (three counts), assault in the third degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Toko Serita of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Thomas M. Ross of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, DANIEL W. JOY, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the facts, by reversing the conviction for assault in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant's contentions that the indictment charging him with three counts of rape in the second degree lacked specificity and was rendered duplicitous by the trial testimony are not preserved for appellate review ( see, CPL 470.05; People v. Iannone, 45 N.Y.2d 589; People v. Cosby, 222 A.D.2d 690), and we decline to address these issues in the exercise of our interest of justice jurisdiction.
Upon the exercise of our factual review power ( see, CPL 470.15), we conclude that the verdict of guilt on the count of the indictment charging assault in the third degree was against the weight of the evidence. The evidence demonstrates that the complainant did not sustain a "physical injury" (Penal Law § 10.00, 120.00; Matter of Philip A., 49 N.Y.2d 198, 200; People v. Cheeks, 161 A.D.2d 657). Accordingly, the count of the indictment charging the defendant with assault in the third degree must be dismissed.