Summary
holding that physical injury existed when a victim had obtained a scraped knee, hip, hand and arm, accompanied by pain and dizziness for two days
Summary of this case from Guerrero v. PayantOpinion
March 28, 1996
Appeal from the Supreme Court, New York County (Edward Sheridan, J.).
Legally sufficient proof of "physical injury" (Penal Law § 10.00) was adduced by the victim's testimony that, as a result of the incident, he sustained scrapes to his hip, knee, hand, and arm, throbbing pain in his head and neck, pain in his foot, dizziness, rise in blood pressure and continued to have pain in his hip, leg and knee for two or three days ( see, People v DeChamps, 219 A.D.2d 485, lv denied 86 N.Y.2d 841). Defendant's claim that the prosecutor improperly used three hypotheticals in summation is unpreserved as a matter of law, since defendant did not object to two of the hypotheticals nor to the sufficiency of the court's instructions to the jury to disregard the third, and we decline to review it in the interest of justice. If we were to review, we would find, inter alia, that the prosecutor's use of two of the hypotheticals was a proper response in kind to defendant's own initial use of hypotheticals ( see, People v Galloway, 54 N.Y.2d 396). The People's response to defendant's and the codefendant's attack on the police officer's credibility did not constitute vouching and was proper ( cf., e.g., People v Lovello, 1 N.Y.2d 436, 438-439; see, People v Robertson, 192 A.D.2d 447, lv denied 82 N.Y.2d 725). We perceive no abuse of sentencing discretion, particularly in view of defendant's criminal record and the violent nature of this crime ( see, People v Farrar, 52 N.Y.2d 302, 305).
Concur — Sullivan, J.P., Rosenberger, Ross, Williams and Tom, JJ.