Opinion
570937/98.
Decided February 11, 2004.
Defendant appeals from a judgment of the Criminal Court, New York County, rendered May 27, 1998 after trial (William Wallace, III, J.H.O. at suppression hearing; Margaret Finerty, J. at jury trial) convicting him of assault in the third degree (Penal Law § 120.00), and sentencing him to one year in jail.
Judgment of conviction rendered May 27, 1998 (William Wallace, III, J.H.O. at suppression hearing; Margaret J. Finerty, J. at jury trial) affirmed.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
Defendant's suppression motion was properly denied. In view of defense counsel's record acknowledgment at the suppression hearing that the pre-trial identification procedure was not "police arranged," defendant's present contention that the procedure constituted an impermissible showup is unpreserved. In any event, even if we were to view the encounter as a showup, we would find no basis for suppression, since it was prompt, on-the-scene and not unduly suggestive ( see, People v. Mendoza, 293 AD2d 326, lv denied 98 NY2d 678).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The element of physical injury was established by evidence that defendant repeatedly struck the victim about the face and head, causing a bloody nose, a "busted" lip, and a "big bruise" and lacerations on the side of his face, injuries documented in photographs shown to the jury ( see, People v. Guidice, 83 NY2d 630, 636; People v. Marsh, 264 AD2d 647, lv denied 94 NY2d 825). Whether defendant struck the victim with a bottle or merely with his hand does not alter the result.
Defendant's challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that the remarks now challenged were within the broad bounds of permissible rhetorical comment and did not deprive defendant of a fair trial ( see, People v. D'Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884).
Inasmuch as defendant completed the sentence imposed, his argument that it was excessive is moot ( see, People v. La Motte, 285 AD2d 814, 817).
This constitutes the decision and order of the court.