Opinion
2000-09425
Submitted November 14, 2002.
December 9, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered September 20, 2000, as amended September 27, 2000, convicting him of robbery in first degree, assault in the second degree, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Barbara Lerner of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Johnette Traill of counsel; Jennifer Hagan on the brief), for respondent.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, HOWARD MILLER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant has not preserved for appellate review his contention that the People failed to prove his identity as the perpetrator by legally sufficient evidence, since he did not specify this ground in his motion to dismiss at trial (see CPL 470.05; People v. White, 192 A.D.2d 736). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's identity beyond a reasonable doubt.
The defendant also contends that the People failed to prove that the complainant suffered a "physical injury" within the meaning of Penal Law § 10.00(9). However, the complainant testified that he was choked and temporarily lost consciousness, and that he was unable to eat any solid foods for two days. The pain in his neck and his throat persisted for approximately seven to eight months. This evidence was sufficient to establish physical injury as defined by Penal Law § 10.00(9), and thus supports the defendant's conviction of assault in the second degree (see People v. Brown, 243 A.D.2d 749; People v. Bailey, 259 A.D.2d 779; People v. Beasley, 238 A.D.2d 433).
Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
ALTMAN, J.P., SMITH, H. MILLER and MASTRO, JJ., concur.