Opinion
June 8, 1987
Appeal from the Supreme Court, Kings County (Bonomo, J.).
Ordered that the amended judgment is modified, on the law, by reversing the conviction for assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the amended judgment is affirmed.
Contrary to the defendant's contention, his conviction on the charge of robbery in the second degree in the course of which the victim was physically injured was not repugnant to his acquittal on the charge of robbery in the second degree predicated on the defendant having been aided by a person actually present and arising out of the same facts (see, People v Delgado, 79 A.D.2d 975; see also, People v Jones, 126 A.D.2d 401). The acquittal on the latter charge did not negate the essential elements required to convict on the former charge (see, People v Goodfriend, 64 N.Y.2d 695).
Further, we do not find merit in the defendant's argument that the victim's injuries do not constitute "physical injury" within the meaning of Penal Law § 10.00 (9). Whether or not the victim sustained "physical injury" is generally a question for the trier of fact (see, People v Rojas, 61 N.Y.2d 726) and, on this record, a rational jury could have found that the complainant suffered a "physical injury" (see, People v Rollins, 120 A.D.2d 896, lv denied 68 N.Y.2d 773; People v Coward, 100 A.D.2d 628). Moreover, upon the exercise of our factual review power we are satisfied that the jury's implicit finding that the complainant suffered a "physical injury" was not against the weight of the evidence (CPL 470.15).
We also hold that the defendant was properly resentenced as a persistent violent felony offender after his first sentence had been vacated pursuant to People v Morse ( 62 N.Y.2d 205). In the new persistent felony offender statement the People included a conviction not raised in the original statement. Such a procedure does not violate the prohibition against double jeopardy (see, People v Sailor, 65 N.Y.2d 224, cert denied 474 U.S. 982; see also, People v Sykes, 110 A.D.2d 918). The defendant's resentence was not excessive (see, People v Suitte, 90 A.D.2d 80).
However, as assault in the second degree is a lesser included offense of robbery in the second degree, the assault conviction must be vacated (see, People v Tuma, 119 A.D.2d 606, lv denied 68 N.Y.2d 673).
We have considered the defendant's remaining contentions and find them to be without merit. Brown, J.P., Weinstein, Rubin and Kooper, JJ., concur.