Opinion
Submitted November 19, 1999
December 20, 1999
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered September 11, 1998, convicting him of assault in the third degree (two counts), criminal possession of a weapon in the fourth degree, endangering the welfare of a child, criminal contempt in the second degree, and harassment in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Michelle Mogal of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Jacqueline M. Linares, and Lori Glachman of counsel; Jennifer Beller on the brief), for respondent.
WILLIAM C. THOMPSON, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER and ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's claim that the evidence of "physical injury" ( Penal Law § 10.00[9]) was insufficient to support his conviction for assault in the third degree is unpreserved for appellate review, as he never raised this specific issue at trial (see, CPL 470.05[2]; People v. Gray, 86 N.Y.2d 10 ; People v. Udzinski, 146 A.D.2d 245 ). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620 ), we are satisfied that the evidence of "substantial pain" necessary to establish "physical injury" within the meaning ofPenal Law § 10.00(9) was legally sufficient to establish the defendant's guilt of assault in the third degree beyond a reasonable doubt (see, People v. Clarke, 250 A.D.2d 619 ; People v. Azadian, 195 A.D.2d 565 ).
THOMPSON, J.P., KRAUSMAN, H. MILLER, and SCHMIDT, JJ., concur.