PEOPLE v. KELLY (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the first degree (Penal Law § 140.30[2] ) and assault in the third degree (§ 120.00[1] ).   We reject defendant's contention that the evidence is legally insufficient to support the conviction.   With respect to the physical injury element of both crimes of which defendant was convicted, the evidence is legally sufficient to establish that the victim suffered the requisite “impairment of physical condition or substantial pain” (§ 10.00[9];  see People v. Amin, 294 A.D.2d 863, 742 N.Y.S.2d 746, lv. denied 98 N.Y.2d 672, 674, 746 N.Y.S.2d 461, 463, 774 N.E.2d 226, 228;  Matter of Isaac M., 219 A.D.2d 805, 632 N.Y.S.2d 49;  People v. Beaton, 152 A.D.2d 992, 543 N.Y.S.2d 797, lv. denied 74 N.Y.2d 845, 546 N.Y.S.2d 1009, 546 N.E.2d 192).   Also contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The jury was entitled to credit the testimony of the victim that she was attacked by defendant in her apartment and to reject the theory of the defense that defendant was attacked in the hallway of an apartment building by the victim and another man (see generally People v. Shaw, 277 A.D.2d 1052, 715 N.Y.S.2d 351, lv. denied 96 N.Y.2d 806, 726 N.Y.S.2d 384, 750 N.E.2d 86).

Contrary to defendant's further contention, the comments of the prosecutor during his opening and closing statements were “fair comment on the evidence and ‘did not exceed the broad bounds of rhetorical comment permissible in [such statements]’ ” (People v. Williams, 28 A.D.3d 1059, 1061, 813 N.Y.S.2d 606, quoting People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885).   In any event, the prosecutor's alleged misconduct was not “so egregious as to deprive defendant of a fair trial” (id. at 1060, 813 N.Y.S.2d 606;  see People v. Melendez, 11 A.D.3d 983, 984, 782 N.Y.S.2d 893, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979).   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: