People v. Reed

Full title: People v. Reed

Court: Supreme Court of New York, Appellate Division, First Department

Date published: Sep 23, 1997

242 A.D.2d 478 (N.Y. App. Div. 1997)

662 N.Y.S.2d 473

Opinion

242 A.D.2d 478 662 N.Y.S.2d 473 The PEOPLE of the State of New York, Respondent, v. William REED, Defendant-Appellant. 1997-07625 Supreme Court of New York, First Department September 23, 1997.

Tami J. Aisenson, for respondent.

Kerry Elgarten, for defendant-appellant.

Before SULLIVAN, J.P., and ELLERIN, NARDELLI, WILLIAMS and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered March 29, 1995, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 2 to 6 years, unanimously affirmed.

Defendant's claim that the People failed to prove the "serious physical injury" element of first-degree assault (Penal Law § 120.10[1] ) is unpreserved for appellate review as a matter of law, since he failed to raise it before the trial court (CPL 470.05[2]; People v. Gray, 86 N.Y.2d 10, 20, 629 N.Y.S.2d 173, 652 N.E.2d 919), and neither his arguments to the jury nor his requests to charge constituted preservation of the issue. Were we to reach this claim, we would find that the jury had ample basis for concluding that the victim sustained a "protracted impairment of health" constituting serious physical injury (Penal Law § 10.00[10] ).

[662 N.Y.S.2d 474]Contrary to defendant's argument, his claim that the court's charge constructively amended the indictment is a claim requiring preservation (see, People v. Borrero, 188 A.D.2d 357, 591 N.Y.S.2d 32, lv. denied 81 N.Y.2d 882, 597 N.Y.S.2d 943, 613 N.E.2d 975; People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9, lv. denied 74 N.Y.2d 853, 546 N.Y.S.2d 1018, 546 N.E.2d 201), and we decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would find that the court's instruction was correct. It was defendant's own testimony that created any discrepancy between the proof at trial and the factual allegations set forth in the indictment and established before the Grand Jury (People v. Spann, 56 N.Y.2d 469, 473-74, 452 N.Y.S.2d 869, 438 N.E.2d 402; People v. Angel, 238 A.D.2d 210, 656 N.Y.S.2d 256; cf., People v. Grega, 72 N.Y.2d 489, 534 N.Y.S.2d 647, 531 N.E.2d 279).

Defendant's challenge to the court's justification charge is unpreserved and without merit.