Opinion
KA 02-00520.
Decided April 30, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered January 25, 2002. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (STEVEN MEYER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, SCUDDER, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05). For the reasons set forth in our decision in the appeal of a codefendant with whom defendant was jointly tried ( People v. Davis, 6 A.D.3d 1168 [Apr. 30, 2004]), we reject the contentions of defendant that he was deprived of his right to a fair trial by Supreme Court's discharge of a juror and that the verdict is against the weight of the evidence. Also contrary to defendant's contention, the evidence is legally sufficient to establish that the victim sustained a physical injury within the meaning of Penal Law § 10.00 (9). The People presented evidence at trial that defendant and his codefendants struck the victim's head with a blunt instrument and kicked and "stomped on" the victim's body and face. The victim was covered in blood when the police arrived and had cuts and bruises all over his body. He was admitted to the trauma unit for several days following the incident and still suffers from headaches. Viewing the evidence in the light most favorable to the People, we conclude that it is legally sufficient to support the conviction ( see generally People v. Bleakley, 69 N.Y.2d 490, 495). Finally, the sentence is not unduly harsh or severe.