PEOPLE v. CARTER

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Dale CARTER, Defendant-Appellant.

Decided: April 30, 2004

PRESENT:  PIGOTT, JR., P.J., PINE, SCUDDER, GORSKI, AND HAYES, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Steven Meyer of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05[2] ).   For the reasons set forth in our decision in the appeal of a codefendant with whom defendant was jointly tried (People v. Davis, 6 A.D.3d 1168, 775 N.Y.S.2d 650), we reject the contentions of defendant that he was deprived of his right to a fair trial by Supreme Court's discharge of a juror and that the verdict is against the weight of the evidence.   Also contrary to defendant's contention, the evidence is legally sufficient to establish that the victim sustained a physical injury within the meaning of Penal Law § 10.00(9).   The People presented evidence at trial that defendant and his codefendants struck the victim's head with a blunt instrument and kicked and “stomped on” the victim's body and face.   The victim was covered in blood when the police arrived and had cuts and bruises all over his body.   He was admitted to the trauma unit for several days following the incident and still suffers from headaches. Viewing the evidence in the light most favorable to the People, we conclude that it is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: