Opinion
No. 2004-08029.
January 16, 2007.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered August 4, 2004, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Sabrina Thanse on the brief), for respondent.
Before: Krausman, J.P., Florio, Lunn and Covello, JJ.
Ordered that the judgment is affirmed.
The defendant contends that the prosecution failed to prove his guilt of assault in the second degree beyond a reasonable doubt because, inter alia, the complainant did not sustain a "physical injury" within the meaning of Penal Law § 10.00 (9). However, viewing the evidence in the light most favorable to the prosecution ( see People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the jury's finding of physical injury ( see People v Terrero, 31 AD3d 672, lv denied 7 NY3d 852; People v Rambali, 27 AD3d 582; People v Clarke, 250 AD2d 619; People v Belk, 241 AD2d 552). Viewed in this light, we also find that the evidence adduced at trial was legally sufficient to establish that the defendant used a dangerous instrument during the incident ( see Penal Law § 10.00; People v Millett, 26 AD3d 345; People v Hallums, 157 AD2d 800, 801). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).
The defendant's claim that the jury's verdict was repugnant since the jury convicted him of assault in the second degree while acquitting him of criminal possession of a weapon in the second and third degrees is unpreserved for appellate review, as he failed to raise this issue before the discharge of the jury ( see People v Satloff, 56 NY2d 745, 746; People v Bennette, 23 AD3d 489; People v Salazar, 16 AD3d 439). In any event, viewing the elements of the crimes as charged to the jury ( see People v Tucker, 55 NY2d 1, 7), the verdict was not repugnant since the acquittal on the counts of criminal possession of a weapon in the second and third degrees did not negate any of the elements of assault in the second degree ( see People v Cruz, 175 AD2d 212; People v Hudson, 163 AD2d 418; People v Garcia, 72 AD2d 356, 361, affd 52 NY2d 716).