Opinion
2002-233 OR CR.
Decided February 13, 2004.
Appeal by defendant from a judgment of the Justice Court, Town of Monroe, Orange County (M. Marshak, J.), rendered on August 9, 2000, adjudicating him a youthful offender upon a nonjury verdict finding him guilty of assault in the third degree (Penal Law § 120.00) and imposing sentence.
Judgment adjudicating defendant a youthful offender unanimously affirmed.
PRESENT: McCABE, P.J., LIFSON and SKELOS, JJ.
A claim that the People failed to establish an element of the offense does not constitute an error that raises a question of law unless the failure is called to the attention of the trial court by a specific objection ( People v. Gray, 86 NY2d 10; CPL 470.05). This holds true even in the case of a nonjury trial ( People v. Santos, 86 NY2d 869). In the case at bar, no specific objection was made.
Consequently, said issue was not preserved for appeal.
In any event, the judgment was based on legally sufficient evidence and was not against the weight of the evidence. The complainant testified that the defendant opened the complainant's car door, hit him in the ear with a bottle, punched him in the face a few times and pulled him out of the car, whereupon he was kicked in the head by about 20 people. As a result of the assault, he suffered two black eyes, cuts on his face, a swollen lip and a cut on his ear. He stated that the defendant caused approximately 50% of his injuries. In our opinion, the foregoing established the element of physical injury ( see People v. Guzman, 260 AD2d 188).
A witness, who was in the complainant's automobile at the time of the assault, identified the defendant as the person who attacked the complainant. Other witnesses also identified defendant as being at the scene. While the defendant and two alibi witnesses testified that the defendant was elsewhere at the time of the assault, we find no basis to disturb the court's determination on the issue of credibility.