Opinion
September 23, 1997
Appeal from Supreme Court, New York County (Nicholas Figueroa, J.).
Defendant's claim that the People failed to prove the "serious physical injury" element of first-degree assault (Penal Law § 120.10) is unpreserved for appellate review as a matter of law, since he failed to raise it before the trial court (CPL 470.05; People v. Gray, 86 N.Y.2d 10, 20), 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).
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, lv denied 81 N.Y.2d 882; People v. Udzinski, 146 A.D.2d 245, lv denied 74 N.Y.2d 853), 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, 473-474; People v. Angel, 238 A.D.2d 210; cf., People v. Grega, 72 N.Y.2d 489).
Defendant's challenge to the court's justification charge is unpreserved and without merit.
Concur — Sullivan, J.P., Ellerin, Nardelli, Williams and Andrias, JJ.