Opinion
October 22, 1992
Appeal from the Supreme Court, New York County (Harold Rothwax, J.).
Viewing the evidence in the light most favorable to the People (People v Contes, 60 N.Y.2d 620), the victim's testimony that as a result of her struggle with defendant, her hand became swollen and her fingers immobilized, and that she was told at the hospital that her fingers were sprained, was sufficient to establish physical injury within the meaning of Penal Law § 10.00 (9), even in the absence of medical testimony (Matter of Christopher T., 156 A.D.2d 190; see also, People v Tellis, 156 A.D.2d 260, lv denied 76 N.Y.2d 743). Further support for the finding of physical injury is to be found in the victim's testimony that even at the time of trial, a year after the incident, she experienced pain when the hand was touched (People v Rivera, 158 A.D.2d 340, lv denied 76 N.Y.2d 741).
There is no merit to defendant's mostly unpreserved claims with respect to the prosecutor's summation. The remarks of which defendant now complains were responsive to defense summation that went to great lengths to directly attack the truthfulness of the People's witnesses. The prosecutor was entitled to respond to those arguments (People v Wright, 172 A.D.2d 293, lv denied 77 N.Y.2d 1003).
Finally, the court did not abuse its discretion in permitting the prosecutor to inquire into defendant's prior robbery convictions. The mere fact that the crimes charged were similar to those defendant had previously committed does not of itself warrant preclusion (People v Cain, 167 A.D.2d 131, lv denied 77 N.Y.2d 836), and, with respect to the 1972 and 1974 convictions, much of the intervening period had been spent in prison (supra). While the record is not entirely clear as to whether the court intended to allow inquiry into the 1972 conviction, the parties must have understood that such was permitted, since there was no objection when the prosecutor inquired into it. Thus, defendant's present claim that the prosecutor disregarded the court's ruling regarding that conviction is unpreserved. In any event, the entire inquiry into defendant's criminal record consisted of only three questions.
Concur — Sullivan, J.P., Rosenberger, Asch, Kassal and Rubin, JJ.