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People v. Ebron

267 A.D.2d 396 Court N.Y. App. Div. Decision date 1999-12-20 English

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p. 396
The People of the State of New York, Respondent, v Justin Ebron, Appellant.
[700 NYS2d 731]

—Appeal by the de

p. 397
fendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered September 11, 1998, convicting him of assault in the third degree (two counts), criminal possession of a weapon in the fourth degree, endangering the welfare of a child, criminal contempt in the second degree, and harassment in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s claim that the evidence of “physical injury” (Penal Law § 10.00 [9]) was insufficient to support his conviction for assault in the third degree is unpreserved for appellate review, as he never raised this specific issue at trial (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10 ; People v Udzinski, 146 AD2d 245 ). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620 ), we are satisfied that the evidence of “substantial pain” necessary to establish “physical injury” within the meaning of Penal Law § 10.00 (9) was legally sufficient to establish the defendant’s guilt of assault in the third degree beyond a reasonable doubt (see, People v Clarke, 250 AD2d 619 ; People v Azadian, 195 AD2d 565 ). Thompson, J. P., Krausman, H. Miller and Schmidt, JJ., concur.

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