Opinion
No. KA 07-00251.
October 3, 2008.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered January 17, 2007. The judgment convicted defendant, upon a nonjury verdict, of assault in the second degree and criminal possession of a weapon in the fourth degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.
Before: Martoche, J.P., Lunn, Fahey and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a bench trial of assault in the second degree (Penal Law § 120.05) and criminal possession of a weapon in the fourth degree (§ 265.01 [2]). We reject the contention of defendant that minor inconsistencies in the testimony of a witness and the victim rendered the verdict against the weight of the evidence ( see People v Hawkins, 41 AD3d 1314, lv denied 9 NY3d 923; see generally People v Bleakley, 69 NY2d 490, 495). By making only a general motion to dismiss, defendant failed to preserve for our review his contention that the evidence is legally insufficient with respect to the element of physical injury for the assault count ( see People v Gray, 86 NY2d 10, 19). In any event, that contention lacks merit inasmuch as the People presented legally sufficient evidence establishing that the victim sustained a physical injury, i.e., that he experienced substantial pain as the result of being stabbed by defendant ( see Penal Law § 10.00 (9); People v Beaton, 152 AD2d 992, lv denied 74 NY2d 845).