Opinion
KA 03-01165.
April 29, 2005.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered February 8, 2001. The judgment convicted defendant, upon a jury verdict, of assault in the second degree, criminal possession of a weapon in the third degree and criminal mischief in the fourth degree.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (AUDRA ALBRIGHT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present: Green, J.P., Hurlbutt, Kehoe, Smith and Hayes, JJ.
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 upon a jury verdict of assault in the second degree (Penal Law § 120.05), criminal possession of a weapon in the third degree (§ 265.02 [1]), and criminal mischief in the fourth degree (§ 145.00 [1]). "Defendant failed to preserve for our review his . . . contention that the evidence of physical injury is legally insufficient to support the conviction of assault in the second degree" ( People v. Coleman, 305 AD2d 1031, 1032, lv denied 100 NY2d 579; see People v. Gray, 86 NY2d 10, 19), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Contrary to defendant's further contention, the verdict is not against the weight of the evidence ( see People v. Orta, 12 AD3d 1147; see generally People v. Bleakley, 69 NY2d 490, 495).