PEOPLE v. PENNA

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

The PEOPLE, etc., respondent, v. Philip PENNA, appellant.

Decided: May 24, 1999

CORNELIUS J. O'BRIEN, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ. Laurie S. Hershey, Garden City, N.Y., for appellant and appellant pro se. James M. Catterson, Jr., District Attorney, Riverhead, N.Y. (Karen Petterson and Guy Arcidiacono of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered February 25, 1998, convicting him of assault in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

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 establish the defendant's guilt beyond a reasonable doubt.   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] ).

Contrary to the defendant's contention, the court committed no error in permitting the People to amend the second count of the indictment, charging assault in the second degree (Penal Law § 120.05[2] ), to delete the word “serious” from before the words “physical injury”.   The amendment was necessary so that the indictment accurately reflected the statutory language as well as the actual charge voted upon by the Grand Jury. The defendant was notified of the error during the People's direct case and the amendment did not change the theory of the prosecution's case nor otherwise prejudice the defendant (see, CPL 200.70[1] ).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.

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