PEOPLE v. VALENCIA

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

The PEOPLE, etc., respondent, v. Henry VALENCIA, appellant.

Decided: April 29, 2008

HOWARD MILLER, J.P., MARK C. DILLON, WILLIAM E. McCARTHY, and CHERYL E. CHAMBERS, JJ. Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Aisha Greene of counsel;  Michelle Kaszuba on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered December 13, 2005, convicting him of robbery in the second degree and assault in the second degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of robbery in the second degree and assault in the second degree.   He claims that his conviction was not based on legally sufficient evidence that the victim suffered “physical injury,” as defined by the Penal Law. We disagree.   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 finding that the complainant sustained a physical injury as defined by the Penal Law (see Penal Law §§ 10.00[9], 160.10[2], 120.05[6] ).   The victim testified that the defendant forcibly entered her car and repeatedly banged her head on the car door.   The victim sustained a black eye and bruising on her face, neck, and shoulders, and experienced pain for approximately one week.   The evidence of the circumstances of the attack and the victim's injuries was sufficient to establish that she suffered “physical injury” because she suffered substantial pain (see Penal Law § 10.00[9];  People v. Chiddick, 8 N.Y.3d 445, 447-448, 834 N.Y.S.2d 710, 866 N.E.2d 1039;  People v. Henderson, 92 N.Y.2d 677, 680, 685 N.Y.S.2d 409, 708 N.E.2d 165;  People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951;  People v. Branch, 306 A.D.2d 537, 762 N.Y.S.2d 418).

Further, upon the exercise of our factual review power (see CPL 470.15 [5] ), we are satisfied that the verdict was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

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