Opinion
November 27, 1995
Appeal from the County Court, Westchester County (Angiolillo, J.).
Ordered that the judgment is modified, on the law, by reversing the defendant's conviction of assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, there was legally sufficient evidence adduced at trial to establish that the complainant suffered physical injury (see, Penal Law § 10.00), a necessary element of the charges of robbery in the second degree and assault in the second degree. The complainant testified that the defendant hit and pushed her in the face, causing her to fall to the floor. The complainant also testified that she received medical treatment and that she was unable to go to work for two weeks because of head and backaches.
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), it is legally sufficient to establish the defendant's guilt beyond a reasonable doubt ( see, People v Bogan, 70 N.Y.2d 860; People v Carter, 219 A.D.2d 732; People v Thomas, 195 A.D.2d 581; People v Powell, 181 A.D.2d 924). Moreover, upon the exercise of our factual review power, we find that the verdict of guilt is not against the weight of the evidence (see, CPL 470.15).
However, because the defendant was convicted of robbery in the second degree pursuant to Penal Law § 160.10 (2) (a), his conviction of the lesser included offense of assault in the second degree pursuant to Penal Law § 120.05 (6) must be reversed and that count of the indictment dismissed (see, CPL 300.40 [b]; People v Brinson, 216 A.D.2d 900; People v Patterson, 192 A.D.2d 1083; Matter of Jamal M., 187 A.D.2d 654, 655; People v Rogers, 139 A.D.2d 782, 783).
We note that, contrary to the defendant's contention, grand larceny in the fourth degree based upon the theory that property was taken from the person of the victim (see, Penal Law § 155.30) is not a lesser included offense of robbery in the second degree (see, Matter of Albert R., 215 A.D.2d 563; People v Cintron, 199 A.D.2d 526; People v Sidney, 178 A.D.2d 445).
The trial court did not improvidently exercise its discretion by denying the defendant's challenges for cause of two prospective jurors (see, People v Williams, 63 N.Y.2d 882, 885; People v Pagan, 191 A.D.2d 651, 652). The record reveals that the prospective jurors in question did not possess states of mind that would have precluded them from rendering an impartial verdict (see, CPL 270.20 [b]; People v Williams, supra; People v Torpey, 63 N.Y.2d 361; People v Creighton, 215 A.D.2d 685; People v Holder, 204 A.D.2d 482, 483; People v Pagan, supra). O'Brien, J.P., Pizzuto, Santucci and Joy, JJ., concur.