Opinion
KA 02-00516.
Decided April 30, 2004.
Appeal from a judgment of the Erie County Court (Joseph P. McCarthy, J.), rendered February 14, 2002. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, 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 appeals from a judgment convicting him after a jury trial of assault in the second degree (Penal Law § 120.05). Defendant contends that reversal is required because the evidence is legally insufficient to establish the requisite element of physical injury. Defendant raised that contention for the first time when he moved to set aside the verdict pursuant to CPL 330.30 and thus has failed to preserve that contention for our review ( see People v. Padro, 75 N.Y.2d 820, rearg denied 75 N.Y.2d 1005, rearg dismissed 81 N.Y.2d 989; People v. Rocker, 5 A.D.3d 1106 [Mar. 19, 2004]). In any event, that contention is without merit. We reject defendant's further contention that the verdict is against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495).