Opinion
December 5, 1991
Appeal from the County Court of Chemung County (Danaher, Jr., J.).
Defendant's challenge to the sufficiency of the indictment was not preserved for appellate review insofar as he failed to raise an objection thereto at the time of his guilty plea (see, CPL 470.05; People v Di Noia, 105 A.D.2d 799, lv denied 64 N.Y.2d 759, cert denied 471 U.S. 1022; People v Torres, 96 A.D.2d 604). In any event, defendant's claim that the broomstick handle used in the assault was not a dangerous instrument under the Penal Law (see, Penal Law § 120.05) is without merit. The circumstances under which the handle was used made it capable of causing serious physical injury (see, Penal Law § 10.00; People v Carter, 53 N.Y.2d 113; People v Naylor, 120 A.D.2d 940, lv denied 69 N.Y.2d 714); defendant was therefore properly charged under Penal Law § 120.05 (2). Defendant's remaining contentions have been considered and rejected as lacking in merit.
Mahoney, P.J., Casey, Weiss, Levine and Harvey, JJ., concur. Ordered that the judgment is affirmed.