PEOPLE v. BORST

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

PEOPLE of the State of New York, Respondent, v. Jeffrey BORST, Appellant.

Decided: December 31, 1998

Present:  GREEN, J.P., WISNER, PIGOTT, CALLAHAN and FALLON, JJ. James Leone, Auburn, for appellant. James B. Vargason by Patricia Lawler, Auburn, for respondent.

Defendant was convicted of assault in the second and third degrees (Penal Law §§ 120.00, 120.05[8] ) and reckless endangerment in the second degree (Penal Law § 120.20).   The charges arose out of defendant's spanking, striking and biting a 15-month-old baby for whom defendant was baby-sitting.   We reject defendant's contention that the evidence is legally insufficient to establish that the victim sustained a serious physical injury to support the conviction of assault in the second degree.   The People presented the testimony of the physician who treated the baby in the emergency room and who described the nature of the injuries, as well as the expert testimony of a pathologist, who testified to a reasonable degree of medical certainty that the injuries created a substantial risk of death.   That evidence, viewed in the light most favorable to the People (see, People v. Thompson, 72 N.Y.2d 410, 413, 534 N.Y.S.2d 132, 530 N.E.2d 839, rearg. denied 73 N.Y.2d 870, 537 N.Y.S.2d 489, 534 N.E.2d 327), is legally sufficient to establish that the victim suffered a serious physical injury, as defined in Penal Law § 10.00(10).   We have examined the remaining issue raised by defendant and conclude that it is without merit.

Judgment unanimously affirmed.

MEMORANDUM: