Opinion
Submitted November 30, 1999
December 27, 1999
Appeal by the defendant from a judgment of the County Court, Orange County (Pano Z. Patsalos, J.), rendered February 10, 1995, convicting him of assault in the second degree and criminal mischief in the fourth degree, after a nonjury trial, and imposing sentence.
John P. Savoca, White Plains, N.Y., for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert J. Conflitti and Andrew R. Kass of counsel), for respondent.
DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620 ), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant intended to cause physical injury to the victim when he kicked her in the eye during an argument (see, People v. Ozarowski, 38 N.Y.2d 481, 489 ; People v. Cruz, 257 A.D.2d 664 ), that the victim sustained a "physical injury" within the meaning of the Penal Law (see, Penal Law § 10.00[9]; People v. Sloan, 202 A.D.2d 525 ; People v. Bailey, 178 A.D.2d 846 ), and that the injury was inflicted by means of a dangerous instrument, i.e., the defendant's boot (see, Penal Law § 10.00[13]; People v. Carter, 53 N.Y.2d 113 ; People v. Hansen, 203 A.D.2d 588 ). 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[5]; People v. Gaimari, 176 N.Y. 84, 94 ).
Contrary to the defendant's contention, because he was a second felony offender the sentencing court was without discretion to impose a sentence to run concurrently with that which he was serving on a prior assault conviction (see, Penal Law § 70.25[2-a]; People v. Nichols, 82 A.D.2d 632 ). Moreover, the defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80 ).
The defendant's remaining contentions are without merit.
RITTER, J.P., FRIEDMANN, FEUERSTEIN, and SCHMIDT, JJ., concur.