PEOPLE v. PRIOR (2005)

 Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[2] ) for causing physical injury to the victim by means of a dangerous instrument.   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, that contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The victim testified that she has a permanent two-inch scar on her left earlobe, that the area remains painful and that she can no longer wear earrings (see § 10.00[9];  § 120.05 [2] ).   Although the object used by defendant may have been a cell phone or a box cutter, the object nevertheless became a dangerous instrument when defendant used it “in a manner which render[ed] it readily capable of causing serious physical injury” (People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30;  see also § 10.00[13] ).   Defendant's challenge to the legal sufficiency of the evidence before the grand jury is not properly before us.   “It is well settled that, ‘when a judgment of conviction has been rendered based upon legally sufficient trial evidence, appellate review of a claim alleging insufficiency of Grand Jury evidence is barred’ ” (People v. Bastian, 294 A.D.2d 882, 883, 743 N.Y.S.2d 217, lv. denied 98 N.Y.2d 694, 747 N.Y.S.2d 412, 776 N.E.2d 1, quoting People v. Wiggins, 89 N.Y.2d 872, 874, 653 N.Y.S.2d 91, 675 N.E.2d 845;  see CPL 210.30[6] ).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: