Opinion
May 23, 1988
Appeal from the Supreme Court, Kings County (Pincus, J.).
Ordered that the judgment is affirmed.
The defendant's claim that the trial court erred in failing to charge the defense of not guilty by reason of mental disease or defect (Penal Law former § 30.05) is unpreserved for appellate review as a matter of law, as the defendant at no time requested such a charge or objected to its absence (see, People v McCorkle, 119 A.D.2d 700, lv denied 67 N.Y.2d 1054). In any event, the contention is without merit, for the defendant presented no evidence of mental disease or defect at trial and chose to proceed upon the theory that someone else must have committed the homicide. Moreover, while the evidence presented at trial indicated that the defendant may have been intoxicated at the time of the killing, the trial court properly instructed the jury with respect to the issue of intoxication and its possible effects on the defendant's ability to form a specific criminal intent (see, People v Westergard, 113 A.D.2d 640, affd 69 N.Y.2d 642).
Contrary to the defendant's present contention, we further conclude that there was legally sufficient evidence of "physical injury" within the meaning of Penal Law § 10.00 (9) to sustain his conviction of assault in the third degree (see, e.g., People v Greene, 70 N.Y.2d 860, rearg denied sub nom. People v Bogan, 70 N.Y.2d 951).
We have considered the defendant's remaining contentions and find them to be unpreserved for appellate review (see, People v McCorkle, supra) or without merit (see, People v Morris, 129 A.D.2d 591). Mangano, J.P., Thompson, Sullivan and Harwood, JJ., concur.