Opinion
June 26, 1990
Appeal from the Supreme Court, Bronx County (William Wallace, III, J.).
Defendant herein, following a jury trial, was acquitted of rape, sexual abuse and weapon charges, but convicted of assault, specifically, breaking the complainant's arm. On appeal, he challenges the sufficiency of the evidence against him with respect to intent and whether the victim suffered a serious physical injury. In that regard, the complainant's testimony that defendant struck her with a karate chop in the course of a violent struggle constituted an adequate predicate from which the jury could conclude that defendant intended to cause injury (see, People v. Hildenbrandt, 125 A.D.2d 819, lv denied 69 N.Y.2d 881; People v. Thomas, 50 N.Y.2d 467). Moreover, it is evident that the complainant suffered a "protracted impairment of health" (Penal Law § 10.00) based upon the evidence that she suffered a fractured humerus requiring several weeks of immobilization. Defendant was, further, not entitled to a justification charge. Counsel did not request such an instruction in his 24-page request-to-charge memorandum, and the claim of self-defense was not raised either during the defense opening or summation. Finally, the trial court did not abuse its discretion in sentencing defendant.
Concur — Kupferman, J.P., Milonas, Ellerin, Wallach and Rubin, JJ.