Opinion
1999-03367
Argued June 13, 2002.
August 5, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered March 26, 1999, convicting him of burglary in the first degree, burglary in the second degree, attempted rape in the first degree, assault in the third degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
Andrew C. Fine, New York, N.Y. (Lorca Morello of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, Jin H. Kim, and Lisa Drury of counsel; Jennifer Hagan on the brief), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, HOWARD MILLER, JJ.
ORDERED that the judgment is modified, on the law, by vacating the conviction of burglary in the second degree under the third count of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
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 guilt of burglary in the first degree and assault in the third degree beyond a reasonable doubt, as the evidence established the nature of the victim's injury, the way it was inflicted, and the duration of the pain. This provided the jury with a ready and sufficient basis to determine that the victim suffered "substantial pain" as a result of the defendant's attack (Penal Law § 10.00; see People v. Brown, 243 A.D.2d 749; People v. Boles, 198 A.D.2d 837; People v. Coward, 100 A.D.2d 628).
As correctly conceded by the People, the third count of the indictment charging the defendant with burglary in the second degree constituted an inclusory concurrent count of the conviction of burglary in the first degree (see People v. Green, 56 N.Y.2d 427, 430; People v. Henry, 151 A.D.2d 501, 502). Thus, the conviction of that crime must be vacated, and that count of the indictment dismissed.
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.
O'BRIEN, J.P., FRIEDMANN, McGINITY and H. MILLER, JJ., concur.