Opinion
KA 03-00623.
November 10, 2005.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.), rendered January 22, 2003. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (WILLIAM G. CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present: Scudder, J.P., Martoche, Pine, Lawton 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 assault in the second degree (Penal Law § 120.05) for causing physical injury to the victim by means of a dangerous instrument. Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction ( see People v. Gray, 86 NY2d 10, 19). In any event, that contention is without merit ( see generally People v. Bleakley, 69 NY2d 490, 495). The victim testified that she has a permanent two-inch scar on her left earlobe, that the area remains painful and that she can no longer wear earrings ( see Penal Law § 10.00; § 120.05 [2]). Although the object used by defendant may have been a cell phone or a box cutter, the object nevertheless became a dangerous instrument when defendant used it "in a manner which render[ed] it readily capable of causing serious physical injury" ( People v. Carter, 53 NY2d 113, 116; see also Penal Law § 10.00). Defendant's challenge to the legal sufficiency of the evidence before the grand jury is not properly before us. "It is well settled that, 'when a judgment of conviction has been rendered based upon legally sufficient trial evidence, appellate review of a claim alleging insufficiency of Grand Jury evidence is barred'" ( People v. Bastian, 294 AD2d 882, 883, lv denied 98 NY2d 694, quoting People v. Wiggins, 89 NY2d 872, 874; see CPL 210.30). Finally, the sentence is not unduly harsh or severe.