Opinion
December 14, 1995
Appeal from the Supreme Court, New York County (Frederic Berman, J.).
Defendant's claim that the People failed to prove the "taking" of property for an extended period of time, which element he claims the court's instructions on robbery required, is unpreserved for appellate review as a matter of law as defendant failed to challenge the sufficiency of the evidence on this particular ground at trial ( People v Gray, 86 N.Y.2d 10), and we decline to review it in the interest of justice. Were we to review it, we would find that the court's instructions, considered as a whole, did not require proof of an extended taking, which is not a requisite element of the crime under Penal Law § 160.00.
The proof at trial was sufficient to establish that the victim suffered "physical injury" (Penal Law § 10.00). The victim testified that the scuffle with defendant resulted in his sustaining a "split lip" and a "swollen" mouth, lasting almost a week, and causing him "sharp" pain which made it difficult for him to eat. He also received a cut over his left eye, which had moderate swelling, and caused him "pain like a headache" which was "sharp." This evidence was sufficient to establish that defendant suffered "substantial pain" ( see, People v Valentine, 212 A.D.2d 399, lv denied 85 N.Y.2d 944; People v Mack, 210 A.D.2d 70, lv denied 85 N.Y.2d 911), and "impairment of physical condition" ( see, People v Bogan, 70 N.Y.2d 860).
Concur — Murphy, P.J., Rosenberger, Wallach, Asch and Tom, JJ.