Opinion
Decided May 3, 1983
Appeal from the Supreme Court in the Second Judicial Department, JOHN F. O'SHAUGHNESSY, J.
Edward H. Rosenthal for appellant.
Denis Dillon, District Attorney ( Douglas R. Noll and Anthony J. Girese of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Term should be affirmed.
Defendant has been convicted after a jury trial upon information charging him with assault, third degree, in violation of subdivision 1 of section 120.00 of the Penal Law. The charges arose out of a dispute between defendant, a 28-year-old dental surgeon, and complainant, an 82-year-old man, in the parking area of a Manhasset shopping center. The altercation developed after complainant advised defendant he had parked in a restricted zone. Complainant's version of the incident, supported by evidence in the record and accepted by the jury and a majority of the Appellate Term, was that after complainant spoke defendant approached him while he was sitting in his car. As complainant tried to exit, defendant smashed the door of the car against complainant's foot; that after complainant succeeded in getting out of the car defendant struck him in the ribs and knocked him to the ground. Complainant testified that he sustained a concussion and laceration of the head, several severe and painful bruises and strains, and a severely bruised and swollen foot which he could not support weight on. The symptoms and pain continued three to five weeks (cf. Matter of Philip A., 49 N.Y.2d 198,
200). Complainant was treated by two physicians who testified and generally confirmed his complaints and injuries.
Defendant's version of the incident was substantially different and although his evidence would warrant a factual finding of harassment, we find no error in the court's refusal to charge that crime as a lesser included offense (see People v Glover, 57 N.Y.2d 61; People v Moyer, 27 N.Y.2d 252).
The application for postjudgment relief is not properly before us for review.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS concur.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order affirmed in a memorandum.