People v. Roman — 201 A.D.2d 933

Majority

p. 933

The People of the State of New York, Respondent, v Wilfred Roman, Appellant.

[607 NYS2d 762]

Judgment unanimously affirmed. Memorandum: We reject the contention of defendant that the court committed reversible error when it changed its Sandoval ruling (see, People v Sandoval, 34 NY2d 371 ) just before opening statements. Defendant failed to show that he was prejudiced by the change in the ruling, and thus reversal is not required (cf., People v Powe, 146 AD2d 718 , 719, lv denied 73 NY2d 1020 ; see also, People v Bush, 187 AD2d 951 , 952, lv denied 81 NY2d 882 ; People v Atkinson, 171 AD2d 430 , lv denied 78 NY2d 961 ). We further reject defendant’s contention that the proof of physical injury is legally insufficient. Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620 ), we conclude that the jury reasonably could have inferred that the victim suffered substantial pain as a result of a gunshot wound to his

p. 934

knee that required surgery and a hospital stay of a week (see, e.g., People v Rojas, 61 NY2d 726 ; cf., Matter of Philip A., 49 NY2d 198 , 200). While the court erred in permitting the prosecutor to impeach his witness (see, CPL 60.35; People v Fitzpatrick, 40 NY2d 44 , 51-52; People v Broadwater, 116 AD2d 1022 ), the error was harmless (see, People v Smith, 190 AD2d 1022 , lv denied 81 NY2d 976 ). Contrary to defendant’s contention, the court properly admitted the rifle and ammunition into evidence; there were " 'reasonable assurances of the identity and unchanged condition’ of the evidence” (People v Julian, 41 NY2d 340 , 343, quoting Amaro v City of New York, 40 NY2d 30 , 35) and thus, any deficiencies in the chain of custody affect the weight of that evidence (see, People v McGee, 49 NY2d 48 , 60, cert denied sub nom. Waters v New York, 446 US 942 ; People v Donovan, 141 AD2d 835 , 837, lv denied 72 NY2d 1044 ).

Defendant’s remaining arguments on appeal are unpreserved and we decline to reach them in the interest of justice (see, CPL 470.15 [6]). (Appeal from Judgment of Onondaga County Court, Mulroy, J. — Assault, 2nd Degree.) Present— Pine, J. P., Balio, Fallon, Doerr and Davis, JJ.

Cases cited

People v. Sandoval 34 NY2d 371 N.Y. 1974-06-19 p. 933
People v. Bush 187 AD2d 951 N.Y. App. Div. 1992-11-18 at 952 p. 933
People v. Atkinson 171 AD2d 430 N.Y. App. Div. 1991-03-07 p. 933
People v. Contes 60 NY2d 620 N.Y. 1983-09-01 p. 933
People v. Rojas 61 NY2d 726 N.Y. 1984-01-12 p. 934
In re Philip A. 49 NY2d 198 N.Y. 1980-01-08 at 200 p. 934
People v. Fitzpatrick 40 NY2d 44 N.Y. 1976-06-10 at 51-52 p. 934
Amaro v. City of New York 40 NY2d 30 N.Y. 1976-06-08 at 35 p. 934
People v. McGee 49 NY2d 48 N.Y. 1979-12-17 at 60 p. 934
People v. Donovan 141 AD2d 835 N.Y. App. Div. 1988-06-27 at 837 p. 934