Opinion
No. KA 04-02906.
November 9, 2007.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J), rendered September 22, 2004. The judgment convicted defendant, upon a jury verdict, of assault in the first degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (ERIC DOLAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (MARGARET A. JONES OF COUNSEL), FOR RESPONDENT.
Present: Hurlbutt, J.P., Centra, Lunn, Fahey and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon a jury verdict of assault in the first degree (Penal Law § 120.10), defendant contends that the evidence of serious physical injury is legally insufficient to support the conviction. By failing to renew her motion for a trial order of dismissal after presenting evidence, defendant failed to preserve that contention for our review ( see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678; People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d 849). In any event, we conclude that it lacks merit ( see People v Barnett, 16 AD3d 1128, lv denied 4 NY3d 883; People v Medina, 11 AD3d 331, lv denied 4 NY3d 765; see also People v Coon, 34 AD3d 869, 870-871; cf. People v Gray, 30 AD3d 771, 772-773, lv denied 7 NY3d 848). The sentence is not unduly harsh or severe.