People v. Dailey
650 N.Y.S.2d 637
N.Y. App. Div.
1995
Check Treatment

—Judgment, Supreme Court, New York County (Frederic Berman, J.), rendered September 27, 1990, convicting defendant, after a jury trial, of two counts of robbery in the second degree and assault in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 15 years, 5 to 15 years, and 21/s to, 7 years, respectively, unanimously affirmed.

Defendant’s claim that the People failed to prove the "taking” of property for an extended period of time, which element he claims the court’s instructions on robbery required, is unpreserved for appellate review as a matter of law as defendant failed to challenge the sufficiency of the evidence on this particular ground at trial (People v Gray, 86 NY2d 10), and we decline to review it in the interest of justice. Were we to review it, we would find that the court’s instructions, considered as a whole, did not require proof of an extended taking, which is not a requisite element of the crime under Penal Law § 160.00.

*279The proof at trial was sufficient to establish that the victim suffered "physical injury” (Penal Law § 10.00 [93). The victim testified that the scuffle with defendant resulted in his sustaining a "split lip” and a "swollen” mouth, lasting almost a week, and causing him "sharp” pain which made it difficult for him to eat. He also received a cut over his left eye, which had moderate swelling, and caused him "pain like a headache” which was "sharp.” This evidence was sufficient to establish that defendant suffered "substantial pain” (see, People v Valentine, 212 AD2d 399, Iv denied 85 NY2d 944; People v Mack, 210 AD2d 70, Iv denied 85 NY2d 911), and "impairment of physical condition” (see, People v Bogan, 70 NY2d 860). Concur — Murphy, P. J., Rosenberger, Wallach, Asch and Tom, JJ.