PEOPLE v. WILKENS (1997)

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered June 13, 1995, convicting defendant, after a jury trial, of two counts of assault in the second degree, and sentencing him, as a second felony offender, to consecutive terms of 3 1/212 to 7 years, unanimously affirmed.

 We reject defendant's challenge to the sufficiency of the evidence of “physical injury” (Penal Law § 10.00[9] ) with respect to one of the victims.   There was ample evidence that the child in question suffered substantial pain, a fact which may be readily inferred, through the exercise of common sense, from all the circumstances, including the age of the child and the force of the blows (People v. Tomczak, 189 A.D.2d 926, 592 N.Y.S.2d 486, lv. denied 81 N.Y.2d 977, 598 N.Y.S.2d 779, 615 N.E.2d 236;  see also, People v. Wade, 232 A.D.2d 290, 648 N.Y.S.2d 563).

 Defendant's claim that the People violated the court's Sandoval ruling is unpreserved, since defendant did not make the nature of his generalized objections known to the court at any point in the trial, and is without merit.   The prosecution was justified in asking defendant whether he had ever hit two women in the past, since defendant's direct testimony tended to give the jury the misleading impression that he had no violent or abusive behavior in his background, thereby “opening the door” to examination on the subject (see, People v. Mojias, 184 A.D.2d 424, 585 N.Y.S.2d 357, lv. denied 81 N.Y.2d 764, 594 N.Y.S.2d 727, 610 N.E.2d 400;  People v. Santiago, 169 A.D.2d 557, 564 N.Y.S.2d 412, lv. denied 77 N.Y.2d 1000, 571 N.Y.S.2d 926, 575 N.E.2d 412).

Defendant's request for a missing witness charge was properly denied.   The request was untimely and, in any event, failed to make a prima facie showing of any of the requirements for such a charge (see, People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583).

MEMORANDUM DECISION.