PEOPLE v. SMITH (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the second degree (Penal Law § 160.10[2] [a] ) and grand larceny in the fourth degree (§ 155.30[5] ).   Contrary to defendant's contention, the verdict is not against the weight of the evidence with respect to whether the victim sustained a physical injury within the meaning of Penal Law § 10.00(9) (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to the contention of defendant in his pro se supplemental brief, the evidence also is legally sufficient in that respect (see generally People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951;  People v. Gerecke, 34 A.D.3d 1260, 1261, 823 N.Y.S.2d 797, lv. denied 7 N.Y.3d 925, 927, 827 N.Y.S.2d 694, 696, 860 N.E.2d 996, 998).   Although defendant contends that the testimony of the victim with respect to her level of pain was not credible, the jury was entitled to credit the testimony of the victim that the significant bump on her head resulting from having been punched by defendant caused debilitating pain, requiring her to take pain medication and to remain in bed for three days (see generally Guidice, 83 N.Y.2d at 636, 612 N.Y.S.2d 350, 634 N.E.2d 951).   Defendant failed to object to Supreme Court's jury instructions on the issue of physical injury and thus failed to preserve for our review the challenge in his pro se supplemental brief to those instructions (see CPL 470.05[2] ).   We decline to exercise our power to review that challenge as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

 Finally, we reject the contention of defendant in his pro se supplemental brief that the court erred in failing to impose a sanction based upon the prosecution's failure to secure a hat found at the scene of the crime.  “The People are subject to sanctions for failing to preserve discoverable evidence only if the evidence is lost or destroyed while in their possession” (People v. Dei, 2 A.D.3d 1459, 1461, 769 N.Y.S.2d 772, lv. denied 1 N.Y.3d 626, 777 N.Y.S.2d 25, 808 N.E.2d 1284;  see People v. Tutt, 305 A.D.2d 987, 758 N.Y.S.2d 570, lv. denied 100 N.Y.2d 588, 764 N.Y.S.2d 399, 796 N.E.2d 491;  see also People v. Carpenter, 187 A.D.2d 519, 522, 589 N.Y.S.2d 912, lv. denied 81 N.Y.2d 838, 595 N.Y.S.2d 737, 611 N.E.2d 776, 81 N.Y.2d 1012, 600 N.Y.S.2d 200, 616 N.E.2d 857), and here the hat was never in the possession of the People.

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

MEMORANDUM: