Opinion
2012-07-5
The PEOPLE, etc., respondent, v. Dwayne BOUCHER, appellant.
Lynn W.L. Fahey, New York, N.Y. (Michelle Vallone of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Kimberly Zelnick of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Michelle Vallone of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Kimberly Zelnick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered March 23, 2009, convicting him of robbery in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Gerges, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
The defendant's contention that a detective's entry into his apartment was unlawful is unpreserved for appellate review to the extent that the defendant now argues that his consent to the entry was not voluntary ( seeCPL 470.05 [2]; People v. Jones, 48 A.D.3d 1116, 1116, 849 N.Y.S.2d 859,affd.11 N.Y.3d 822, 869 N.Y.S.2d 8, 898 N.E.2d 21;People v. Philips, 30 A.D.3d 618, 619, 818 N.Y.S.2d 229). In any event, any error in failing to suppress the physical evidence seized from the defendant's apartment was harmless beyond a reasonable doubt. The evidence of the defendant's guilt, without reference to the alleged error, was overwhelming, and there is no reasonable possibility that the alleged error might have contributed to the defendant's conviction ( see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).
The defendant contends that the evidence of “physical injury,” an element of the crime of assault in the second degree (Penal Law § 120.05[6] ), was legally insufficient. This contention is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Rambali, 27 A.D.3d 582, 583, 813 N.Y.S.2d 103). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the complainant sustained a physical injury ( seePenal Law § 10.00[9]; People v. Chiddick, 8 N.Y.3d 445, 447–448, 834 N.Y.S.2d 710, 866 N.E.2d 1039;People v. Valencia, 50 A.D.3d 1163, 1164, 856 N.Y.S.2d 250;People v. Ricco, 11 A.D.3d 343, 344, 784 N.Y.S.2d 28;People v. Pike, 173 A.D.2d 649, 650, 570 N.Y.S.2d 324). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt with respect to assault in the second degree was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902; People v. Velasquez, 79 A.D.3d 1153, 1154, 913 N.Y.S.2d 768;People v. Valencia, 50 A.D.3d at 1164, 856 N.Y.S.2d 250).
The defendant's remaining contentions either are without merit or have been rendered academic in light of our determination.