PEOPLE v. GURLEY (2006)

Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered August 18, 2003, convicting defendant, after a jury trial, of assault in the second degree (three counts) and criminal possession of stolen property in the third degree, and sentencing him, as a persistent felony offender, to concurrent terms of 15 years to life, unanimously affirmed.

 We reject defendant's challenge to the sufficiency of the evidence with respect to one of the assault convictions.   Evidence that the officer sustained a small abrasion to his knee, suffered soreness to his back, knee and wrist, and was absent from work for three days as a result, was sufficient to establish the element of physical injury (see People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994];  People v. McClennon, 287 A.D.2d 310, 731 N.Y.S.2d 365 [2001], lv. denied 97 N.Y.2d 685, 738 N.Y.S.2d 300, 764 N.E.2d 404 [2001];  People v. Marsh, 264 A.D.2d 647, 696 N.Y.S.2d 14 [1999], lv. denied 94 N.Y.2d 825, 702 N.Y.S.2d 596, 724 N.E.2d 388 [1999] ).

Defendant's uncharged crime argument is without merit because the evidence regarding the circumstances under which he stole a vehicle directly supported essential elements of criminal possession of stolen property, a charged crime, and the People “were not bound to stop after presenting minimum evidence” (People v. Alvino, 71 N.Y.2d 233, 245, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ).

 The prosecution properly commented in summation about the absence of any evidence to support a claim made by defendant in his testimony, and this comment did not shift the burden of proof (see People v. Overlee, 236 A.D.2d 133, 142-143, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).   Furthermore, the prosecutor's argument was directly responsive to an argument made in defendant's summation, and it was not contrary to an evidentiary ruling made by the court.

Defendant's other summation claims, as well as his suppression argument and his constitutional challenge to the procedure under which he was sentenced as a persistent felony offender, are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.

We perceive no basis for reducing the sentence, which, contrary to defendant's alternative argument, was legal (People v. Rivera, 5 N.Y.3d 61, 833 N.E.2d 194 [2005], cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473 [2005] ).