Opinion
May 20, 1991
Appeal from the Supreme Court, Queens County (Finnegan, J.).
Ordered that the judgments are affirmed.
The defendant, who at the time of these incidents was a Sergeant in the New York City Police Department, was convicted in connection with two separate assaults upon the complainant. At the time of these assaults, the complainant was under arrest and in police custody.
The first of these assaults took place at the complainant's residence at the time of his arrest. The defendant asserts that the evidence adduced at trial was legally insufficient to support the jury's finding that the complainant suffered a "physical injury" as defined in Penal Law § 10.00 (9) in order to sustain his conviction of assault in the second degree under Indictment No. 2185/85 with respect to that incident (see, Penal Law § 120.05). As the defendant did not raise a specific objection on this ground in his motion for a trial order of dismissal, the issue is not preserved for appellate review (see, CPL 470.05; see also, People v MacCary, 173 A.D.2d 646 [decided herewith]). In any event, the assertion is without merit. At the trial, the complainant testified that he was beaten about the head and jaw by the defendant and the codefendant, after his arrest his jaw was severely swollen, and he had a lump on his head, and he had blurred vision and headaches for several weeks after the incident. Such evidence, when viewed in a light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), was legally sufficient to establish that the complainant suffered "physical injury" as a result of the assault at his residence beyond a reasonable doubt (see, People v Sutton, 161 A.D.2d 612; People v Vaughn, 155 A.D.2d 566; People v Hope, 128 A.D.2d 638; People v Fasano, 112 A.D.2d 791).
The defendant, along with his codefendant Loren MacCary, was also convicted under Indictment No. 2186/85 in connection with an assault upon the complainant with a "stun gun" while the complainant was in custody at a police precinct. Viewing the evidence in a light most favorable to the prosecution, (see, People v Contes, 60 N.Y.2d 620, supra), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v MacCary, supra).
Moreover, upon the exercise of our factual review power, we are satisfied that the verdicts of guilt with respect to both the incident at the complainant's residence and the incident at the precinct were not against the weight of the evidence (see, CPL 470.15).
The defendant's assertion that the trial court should have granted his application for an adjournment, made at the commencement of trial, so that his former attorney could try the case, is without merit. Both the defendant's former attorney and his trial counsel were court-appointed and there is "no * * * right of choice between one lawyer and another where both are court appointed" (People v Cunningham, 134 A.D.2d 273, 274; see, People v Sawyer, 57 N.Y.2d 12, cert denied 459 U.S. 1178). In any event, the defendant did not come forward with any "exigent or compelling circumstances" (People v Gibson, 137 A.D.2d 553, 554) to justify his request for an adjournment. Accordingly, the trial court did not improvidently exercise its discretion in denying that request (see, People v Rascio, 136 A.D.2d 575; People v Gabler, 129 A.D.2d 733; see also, People v Arroyave, 49 N.Y.2d 264, 271).
We have considered the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Kunzeman, Eiber and O'Brien, JJ., concur.