Opinion
December 28, 1992
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the judgment is affirmed.
The "unusual occurrence report" prepared by Detective Michael Russell, which the defendant contends was Rosario material improperly denied to him at trial, is not part of the record before us since it was not turned over to the District Attorney's office and the defendant until after the defendant was sentenced (see, People v Rosario, 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866). Therefore, this issue would more appropriately be raised by a motion pursuant to CPL 440.10 (see, People v Woods, 156 A.D.2d 609; People v Sergi, 96 A.D.2d 911, 912; cf., People v Vacante, 187 A.D.2d 470).
Furthermore, we are satisfied that the element of "physical injury" within the meaning of Penal Law § 10.00 (9) was sufficiently established to support the defendant's conviction for assault in the second degree (Penal Law § 120.05). "[T]he duration of the pain is evidence of its severity and provides a basis for the inference that the pain was substantial" (People v McNair, 147 A.D.2d 593, 594; see also, People v Hope, 128 A.D.2d 638, 639; Matter of Ramon M., 109 A.D.2d 882). Here, the complainant testified that, as a result of the beating administered by the defendant, she continued to suffer pain in her left arm at the time of the trial, nearly two years after the crime. We find this evidence provides a sufficient basis upon which the jury could infer that the pain was substantial. Sullivan, J.P., Balletta, Eiber and Santucci, JJ., concur.