The People, etc., respondent, v. Rafael Servellon, appellant. (2011)

Argued—February 17, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Grella, J.), rendered April 14, 2010, convicting him of criminal mischief in the third degree and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the evidence of “physical injury,” an element of the crime of assault in the third degree (Penal Law § 120.00), was legally insufficient.   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that the evidence was legally sufficient to establish that the complainant suffered either “substantial pain” or “impairment of physical condition” as a result of the altercation with the defendant (Penal Law § 10.00[9];  see Penal Law § 120.00;  Matter of Philip A., 49 N.Y.2d 198, 200).   Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt with respect to assault in the third degree and criminal mischief in the third degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

COVELLO, J.P., BELEN, HALL and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court