Opinion
December 22, 1995
Appeal from the Monroe County Court, Egan, J.
Present — Green, J.P., Pine, Fallon, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The evidence at trial, when viewed in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620, 621), established a physical injury within the meaning of Penal Law § 10.00 (9) (see, People v Pope, 174 A.D.2d 319, lv denied 78 N.Y.2d 1079). We note that defendant's remaining contention on appeal, that the failure to charge the jury on circumstantial evidence was error, is not preserved for our review (see, CPL 470.05), and we decline to reach the issue as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).