PEOPLE v. HENNIGAN (2005)

 Defendant appeals from a judgment convicting her, following a nonjury trial, of three counts of assault in the second degree (Penal Law § 120.05[3], [7] ).   Defendant's motion to dismiss was based only on one of the grounds advanced on appeal, and thus defendant failed to preserve for our review her additional challenges to the alleged legal insufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, all of defendant's challenges to the legal sufficiency of the evidence lack merit.   We note in particular that the evidence is legally sufficient to establish that the first correction officer sustained an “impairment of [her] physical condition or substantial pain” (§ 10.00[9];  see also People v. LaDuca, 292 A.D.2d 851, 851-852, 738 N.Y.S.2d 800, lv. denied 98 N.Y.2d 652, 745 N.Y.S.2d 511, 772 N.E.2d 614;  People v. Sullivan, 284 A.D.2d 917, 917-918, 728 N.Y.S.2d 320, lv. denied 96 N.Y.2d 942, 733 N.Y.S.2d 382, 759 N.E.2d 381, 97 N.Y.2d 658, 737 N.Y.S.2d 59, 762 N.E.2d 937), and it is legally sufficient to establish causation with respect to the injury sustained by the second correction officer (see People v. Pierce, 201 A.D.2d 677, 608 N.Y.S.2d 259, lv. denied 83 N.Y.2d 914, 614 N.Y.S.2d 396, 637 N.E.2d 287;  People v. Douglas, 143 A.D.2d 452, 453, 532 N.Y.S.2d 446;  see also People v. Shongo, 288 A.D.2d 920, 733 N.Y.S.2d 667, lv. denied 97 N.Y.2d 733, 740 N.Y.S.2d 707, 767 N.E.2d 164).

 We reject defendant's further contention that County Court erred in admitting at trial statements made by defendant during her altercation with the correction officers because the CPL 710.30 notice failed to list those statements.   The challenged statements were made at a time when defendant was not in custody for Miranda purposes (see People v. Alls, 83 N.Y.2d 94, 100, 608 N.Y.S.2d 139, 629 N.E.2d 1018, cert. denied 511 U.S. 1090, 114 S.Ct. 1850, 128 L.Ed.2d 474).   Furthermore, they were not in response to police questioning and their voluntariness was not at issue.   Thus, a CPL 710.30 notice was not required with respect to the statements (see People v. Turner, 233 A.D.2d 932, 934, 649 N.Y.S.2d 571, lv. denied 89 N.Y.2d 1102, 660 N.Y.S.2d 396, 682 N.E.2d 997;  People v. McFadden, 126 A.D.2d 970, 511 N.Y.S.2d 745, lv. denied 69 N.Y.2d 953, 516 N.Y.S.2d 1036, 509 N.E.2d 371).

The sentence is not unduly harsh or severe.   We have considered defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: