People v. Daniels

Mar 19, 1990
Versions:159 A.D.2d 631
553 N.Y.S.2d 30
1990 N.Y. App. Div. LEXIS 2971

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Facelle, J.), rendered August 10, 1988, convicting him of assault in the second degree, escape in the third degree and resisting arrest, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

We conclude that there was legally sufficient evidence for the jury to have found that the complainant sustained “physical injury” within the meaning of Penal Law § 10.00 (9) (see, People v Greene, 70 NY2d 860; People v Ball, 140 AD2d 447). The complainant, a police officer, testified that the defendant choked him until he felt “dizzy”, and the defendant scratched his neck and face. The complainant stated that he suffered “a very bad sore throat”, sufficient to cause him to seek emergency-room treatment. When he radioed the station house *632immediately after the incident, he had to repeat himself several times before he could be heard. For days thereafter, he frequently lost his voice. Due to the soreness of his throat, he could not eat solid foods and he restricted his diet accordingly. Three days after the crime, Detective Robert A. Caluori observed that the complainant still could not eat solid foods. He also observed scratch marks around his throat area shortly after the altercation.

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]).

The defendant’s remaining contentions are without merit. Mangano, J. P., Thompson, Bracken and Rubin, JJ., concur.