PEOPLE v. CARDONA (1999)

Judgment, Supreme Court, Bronx County (Steven Barrett, J.), rendered June 5, 1996, convicting defendant, after a jury trial, of sexual abuse in the first degree and assault in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 3 1/2 12 to 7 years and 1 year, respectively, unanimously affirmed.

 The verdict of guilty of sexual abuse in the first degree was not against the weight of the evidence.   The jury had ample basis upon which to conclude that when defendant, during the course of a violent attack upon the victim, lifted the victim's skirt and rubbed her vaginal area, he did so for the purpose of sexual gratification (Penal Law § 130.00[3] ) and not inadvertently.

 Defendant's claim that the evidence was legally insufficient to establish the element of physical injury under the assault count is unpreserved for appellate review in that defendant failed to raise it in his motion for a trial order of dismissal (People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the victim's injuries permitted the jury to infer that she suffered substantial pain from defendant's attack (see, People v. Rojas, 61 N.Y.2d 726, 472 N.Y.S.2d 615, 460 N.E.2d 1100;  People v. Evans, 250 A.D.2d 484, 672 N.Y.S.2d 862, lv. denied 92 N.Y.2d 924, 680 N.Y.S.2d 465, 703 N.E.2d 277).

MEMORANDUM DECISION.