Opinion
November 15, 1989
Appeal from the Supreme Court, Monroe County, Doyle, J.
Present — Dillon, P.J., Denman, Green, Pine and Balio, JJ.
Judgment unanimously affirmed. Memorandum: The trial court did not abuse its discretion in allowing a police officer to testify that defendant pointed a gun at him while fleeing from the crime scene because the testimony was relevant to defendant's state of mind in possessing the weapon and was an integral part of the narrative of events (see, People v Alvino, 71 N.Y.2d 233, 241-243; People v Vails, 43 N.Y.2d 364, 368-369). The court followed the proper procedure in balancing the probative value of the testimony against any prejudice to the defendant (see, People v Ventimiglia, 52 N.Y.2d 350) and promptly instructed the jury that defendant was not charged with shooting at the police. Defendant's claim that the evidence did not establish physical injury sufficiently to sustain his conviction under the second degree assault counts lacks merit since each victim testified that the injuries received caused pain, and it is a question for the trier of fact whether the pain was substantial (see, People v Rojas, 61 N.Y.2d 726; People v Rogers, 138 A.D.2d 419, lv denied 71 N.Y.2d 1032; People v Fasano, 112 A.D.2d 791; People v Coward, 100 A.D.2d 628). Since the trial evidence was legally sufficient, defendant's claim regarding the validity of the court's order denying his motion to dismiss the indictment is not reviewable upon appeal (see, CPL 210.30).