Opinion
January 29, 1991
Appeal from the Supreme Court, New York County (Herbert Adlerberg, J.).
Defendant and complainant were former lovers. On August 21, 1988, when complainant went to defendant's apartment to retrieve some of her possessions, defendant restrained her and over a period of days, raped and sodomized her.
The court's Sandoval ruling permitting inquiry into nine misdemeanor convictions and one felony conviction, without inquiry into the nature of the conviction or the underlying facts, was within the discretion of the Trial Judge. (People v Cain, 167 A.D.2d 131.) The prosecution's comments in summation were either responsive to defense counsel's summation or were adequately cured.
It was not error for the jury to consider whether the broomstick with which defendant struck complainant was a dangerous instrument in order to convict defendant of second degree assault.
Defendant used the broomstick with such force that it broke over the complainant's hand, causing it to remain swollen and difficult to use for weeks. In any event, it is not necessary that the dangerous instrument actually cause serious physical injury, only that it is potentially capable of doing so. (Penal Law § 10.00.) Accordingly, the jury had an ample basis to conclude that the broomstick was a dangerous instrument.
Concur — Murphy, P.J., Carro, Kupferman, Asch and Kassal, JJ.