PEOPLE v. MOSES (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered August 4, 2004, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the prosecution failed to prove his guilt of assault in the second degree beyond a reasonable doubt because, inter alia, the complainant did not sustain a “physical injury” within the meaning of Penal Law § 10.00(9).   However, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to support the jury's finding of physical injury (see People v. Terrero, 31 A.D.3d 672, 818 N.Y.S.2d 288, lv. denied 7 N.Y.3d 852, 823 N.Y.S.2d 781, 857 N.E.2d 76;  People v. Rambali, 27 A.D.3d 582, 813 N.Y.S.2d 103;  People v. Clarke, 250 A.D.2d 619, 673 N.Y.S.2d 153;  People v. Belk, 241 A.D.2d 552, 661 N.Y.S.2d 239).   Viewed in this light, we also find that the evidence adduced at trial was legally sufficient to establish that the defendant used a dangerous instrument during the incident (see Penal Law § 10.00[13];  People v. Millett, 26 A.D.3d 345, 812 N.Y.S.2d 554;  People v. Hallums, 157 A.D.2d 800, 801, 550 N.Y.S.2d 401).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 The defendant's claim that the jury's verdict was repugnant since the jury convicted him of assault in the second degree while acquitting him of criminal possession of a weapon in the second and third degrees is unpreserved for appellate review, as he failed to raise this issue before the discharge of the jury (see People v. Satloff, 56 N.Y.2d 745, 746, 452 N.Y.S.2d 12, 437 N.E.2d 271;  People v. Bennette, 23 A.D.3d 489, 805 N.Y.S.2d 618;  People v. Salazar, 16 A.D.3d 439, 792 N.Y.S.2d 98).   In any event, viewing the elements of the crimes as charged to the jury (see People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617), the verdict was not repugnant since the acquittal on the counts of criminal possession of a weapon in the second and third degrees did not negate any of the elements of assault in the second degree (see People v. Cruz, 175 A.D.2d 212, 573 N.Y.S.2d 907;  People v. Hudson, 163 A.D.2d 418, 559 N.Y.S.2d 661;  People v. Garcia, 72 A.D.2d 356, 361, 424 N.Y.S.2d 697, affd. 52 N.Y.2d 716, 436 N.Y.S.2d 273, 417 N.E.2d 567).