Opinion
December 23, 1988
Appeal from the Erie County Court, La Mendola, J.
Present — Doerr, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The evidence of physical injury to the victim was sufficient to support defendant's conviction for assault in the third degree (cf., People v McDowell, 28 N.Y.2d 373). The victim testified that the force of defendant's blow to her eye caused her to fall to the floor. She was dazed and couldn't see out of her left eye. Her eye began to swell. Defendant himself testified that the victim's eye was swollen and "in bad shape". Photographs of the victim taken in the hospital very soon after the assault reveal substantial bruising and swelling. The examining physician testified that the left side of the victim's face was swollen and battered. This evidence was sufficient to prove impairment of the victim's physical condition (Penal Law § 10.00). We find defendant's remaining contentions to be either unpreserved or lacking in merit.