PEOPLE v. AMIN (2002)

 Defendant was convicted of assault in the second degree (Penal Law § 120.05 [7]) following a bench trial. While an inmate at the Groveland Correctional Facility, defendant assaulted the victim, a teacher and prerelease coordinator at the facility, as she was walking between buildings on the grounds of the facility. County Court's rejection of the affirmative defense of mental disease or defect (§ 40.15) is not against the weight of the evidence. Where, as here, there was conflicting expert testimony on the issue of defendant's mental condition, the determination of the trier of fact to accept or reject the opinion of an expert, in whole or in part, is entitled to deference (see People v. Irizarry, 238 A.D.2d 940, 941, 661 N.Y.S.2d 147, lv. denied 90 N.Y.2d 894, 662 N.Y.S.2d 437, 685 N.E.2d 218; see also People v. Law, 273 A.D.2d 897, 898, 710 N.Y.S.2d 223, lv. denied 95 N.Y.2d 965, 722 N.Y.S.2d 483, 745 N.E.2d 403; People v. Jones, 261 A.D.2d 920, 920, 690 N.Y.S.2d 366, lv. denied 93 N.Y.2d 972, 695 N.Y.S.2d 58, 716 N.E.2d 1103).

 The evidence that the victim had a blackened and swollen eye that throbbed for several days and a gash above her eye that required four stitches is legally sufficient evidence of physical injury as defined in Penal Law § 10.00 (9) (see People v. Giles, 239 A.D.2d 936, 937, 659 N.Y.S.2d 608, lv. denied 90 N.Y.2d 905, 663 N.Y.S.2d 517, 686 N.E.2d 229; see also 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). Defendant's intent to cause physical injury to the victim may be inferred from defendant's conduct and the surrounding circumstances (see People v. Shero, 283 A.D.2d 953, 725 N.Y.S.2d 782, lv. denied 96 N.Y.2d 868, 730 N.Y.S.2d 42, 754 N.E.2d 1125).

 Defendant contends that the showup identification procedure, whereby the victim identified him while she was in the prison hospital after the attack, was unduly suggestive. By withdrawing his pretrial request for a Wade hearing and then failing to object to the victim's identification of defendant at trial, defendant failed to preserve that contention for our review (see CPL 470.05 [2]). In any event, that contention is without merit. The showup procedure was in proximity to the time and place of the crime and thus was properly conducted in the interest of prompt identification (see People v. Duuvon, 77 N.Y.2d 541, 544, 569 N.Y.S.2d 346, 571 N.E.2d 654). The sentence is neither unduly harsh nor severe.

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

MEMORANDUM: