Opinion
KA 04-02858.
March 17, 2006.
Appeal from a judgment of the Ontario County Court (James R. Harvey, J.), rendered November 24, 2004. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree, grand larceny in the fourth degree and assault in the second degree.
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the second degree (Penal Law § 160.10 [a]), grand larceny in the fourth degree (§ 155.30 [5]) and assault in the second degree (§ 120.05 [6]). Contrary to defendant's contention, the evidence is legally sufficient to establish that the victim sustained a physical injury within the meaning of Penal Law § 10.00 (9) and thus is legally sufficient to support the conviction of robbery and assault ( see People v. Bowen, 17 AD3d 1054, 1055-1056, lv denied 5 NY3d 759; People v. Goico, 306 AD2d 828, 828-829; see generally People v. Bleakley, 69 NY2d 490, 495). Also contrary to defendant's contention, the verdict is not against the weight of the evidence ( see generally Bleakley, 69 NY2d at 495). "Defendant failed to object to County Court's 'ultimate' Sandoval ruling and therefore . . . failed to preserve for our review his contention that the . . . ruling constitutes an abuse of discretion" ( People v. O'Connor, 19 AD3d 1154, 1155, lv denied 5 NY3d 831; see People v. Englert, 285 AD2d 987, lv denied 97 NY2d 655). In any event, we conclude that the court's Sandoval ruling does not constitute an abuse of discretion ( see People v. Hayes, 97 NY2d 203, 207-208; People v. Taylor, 11 AD3d 930, lv denied 4 NY3d 749). Finally, the sentence is not unduly harsh or severe.