Opinion
KA 01-01543
October 2, 2003.
Appeal from a judgment of Erie County Court (D'Amico, J.), entered June 8, 2001, convicting defendant after a nonjury trial of assault in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (MARCY H. HAGEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a nonjury trial of assault in the second degree (Penal Law 120.05). Defendant contends that the evidence is legally insufficient because the element of physical injury was not established as a matter of law. Defendant failed to move to dismiss the indictment on that ground and thus failed to preserve his contention for our review ( see People v. Gray, 86 N.Y.2d 10, 19). Although defendant raised that contention in his postverdict motion pursuant to CPL article 330, that motion also did not preserve his contention for our review ( see People v. Slavin, 299 A.D.2d 499; People v Palompelli, 296 A.D.2d 557, 558, lv denied 99 N.Y.2d 538; People v. Schultz, 266 A.D.2d 919, lv denied 94 N.Y.2d 906; see generally People v. Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678) . We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]).