PEOPLE v. DIAZ (1998)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jose DIAZ, Defendant-Appellant.

Decided: October 06, 1998

Before SULLIVAN, J.P., MILONAS, NARDELLI and TOM, JJ.

Jon Veiga, for Respondent. Jan Hoth-Uzzo, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered June 13, 1997, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second violent felony offender, to a determinate term of 14 years, unanimously affirmed.

Defendant failed to preserve his claim that the evidence presented at trial was legally insufficient to prove beyond a reasonable doubt that the victim suffered serious physical injury, and we decline to review it in the interest of justice. Were we to review this claim, we would find that there was overwhelming evidence to support the jury's determination that the victim suffered protracted impairment of health as a result of the robbery (see, People v. Virgo, 197 A.D.2d 458, 604 N.Y.S.2d 710, lv. denied 82 N.Y.2d 905, 610 N.Y.S.2d 172, 632 N.E.2d 482). The victim's broken nose and shoulder required surgery and extended therapy and produced lengthy residual impairment.

MEMORANDUM DECISION.

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