PEOPLE v. PETTINE (2008)

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, assault in the third degree (Penal Law § 120.00[1] ) and endangering the welfare of a child (§ 260.10[1] ).   Contrary to the contentions of defendant, the evidence is legally sufficient to support his conviction of those counts (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The victim testified that defendant bent her over a sink, choked her, threatened to kill her, and attempted to attack her with scissors and knives.   The incident occurred in the presence of their two-year-old son, who was crying and screaming.   The victim went to the emergency room both shortly after the incident and two days later, and she also sought treatment from her physician.   She testified that she had severe back pain for more than two weeks, as well as severe pain in her throat and jaw and difficulty swallowing, which lasted 1 1/212 to 2 weeks.   We thus conclude that the evidence is legally sufficient to establish that the victim sustained a physical injury, i.e., “impairment of physical condition or substantial pain” to support the assault conviction (§ 10.00[9];  see People v. Black, 304 A.D.2d 905, 906, 908, 757 N.Y.S.2d 635, lv. denied 100 N.Y.2d 578, 764 N.Y.S.2d 388, 796 N.E.2d 480;  People v. Cancer, 232 A.D.2d 875, 876, 649 N.Y.S.2d 492, lv. denied 89 N.Y.2d 984, 656 N.Y.S.2d 742, 678 N.E.2d 1358), and that defendant knowingly acted in a manner that was likely to result in harm to the child, to support the conviction of endangering the welfare of a child (see § 260.10[1];  People v. Bray, 46 A.D.3d 1232, 1234, 848 N.Y.S.2d 738;  People v. Betters, 41 A.D.3d 1040, 1041, 838 N.Y.S.2d 254;  see generally People v. Johnson, 95 N.Y.2d 368, 371-372, 718 N.Y.S.2d 1, 740 N.E.2d 1075).

Also contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant failed to preserve for our review his contention that County Court erred in charging the jury with respect to the count charging defendant with endangering the welfare of a child (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

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

MEMORANDUM: