Opinion
1592
September 24, 2002.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered February 28, 2001, convicting defendant, after a jury trial, of sodomy in the first degree, assault on a police officer and menacing in the third degree, and sentencing him to concurrent terms of 7 years, 3 1/2 years and 1 year, respectively, unanimously affirmed.
DAVID AARON, for respondent.
LUKE MARTLAND PRO SE, for defendant-appellant.
Before: Nardelli, J.P., Saxe, Buckley, Ellerin, Marlow, JJ.
Defendant's suppression motion was properly denied. The record supports the hearing court's finding that the lineup was not unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833). The lineup participants wore shirts of varying styles and colors. There was no evidence adduced at the hearing concerning the victim's description of the clothing worn by her assailant at the time of the crime, and defendant's reliance on trial testimony is inappropriate (see People v. Gonzalez, 55 N.Y.2d 720, 721-722).
Defendant's challenge to the sufficiency of the evidence supporting the assault charge is unpreserved and we decline to review it in the interests of justice. Were we to review this claim, we would find that the evidence established that the officer suffered a fractured bone in his elbow due to defendant's resistance while being arrested, causing the officer to miss almost one month from work and to be placed on limited duty for another three weeks thereafter. Additionally, the officer had some limitation of movement of his elbow some six months later. Accordingly, the officer suffered the requisite protracted impairment of health and protracted impairment of the function of a bodily organ, thus constituting a serious physical injury (see Penal Law § 10.00(10); § 120.08; People v. Mohammed, 162 A.D.2d 367, lv denied 76 N.Y.2d 861). We further find that the verdict was not against the weight of the evidence.
The record before us demonstrates that defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 713-714).
Defendant's remaining contentions, including those contained in his pro se supplemental brief, are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.