People v. Nix

Dec 26, 1989
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bonomo, J.), rendered March 24, 1983, convicting him of rape in the first degree, assault in the ‍‌​​‌​‌​‌​‌​​​​‌‌​​‌‌​​​​‌​‌‌‌‌​‌​‌‌‌​​​​‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​​‌​​‌​​‌​‌​‌​‌​‌‌​‌​‌‌​‌​​‌​‌​‌‌​​‌​​​‍second degree, assault in the third *723degree, criminal possession of a weapon in the fourth degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The evidence adduced at trial was sufficient to establish that the complainant sustained “physical injury” as defined in Penal Law § 10.00 (9) in connection with the assault convictions (see, ‍‌​​‌​‌​‌​‌​​​​‌‌​​‌‌​​​​‌​‌‌‌‌​‌​‌‌‌​​​​‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​​‌​​‌​​‌​‌​‌​‌​‌‌​‌​‌‌​‌​​‌​‌​‌‌​​‌​​​‍Matter of Philip A., 49 NY2d 198, 200; see also, People v Tabachnik, 131 AD2d 611; People v Sherrod, 132 AD2d 683). These charges were based on the defendant having hit the complainant with his fist on the right side of her face and around the eye. The complainant further testified that the whole side of her head was “killing” her and that the pain ‍‌​​‌​‌​‌​‌​​​​‌‌​​‌‌​​​​‌​‌‌‌‌​‌​‌‌‌​​​​‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​​‌​​‌​​‌​‌​‌​‌​‌‌​‌​‌‌​‌​​‌​‌​‌‌​​‌​​​‍continued for “about a week”. The testimony of an eyewitness neighbor indicated that after the assault, the complainant “had been crying and she had a few bruises on her face”.

The defendant’s further contentions challenging various statements made by the Trial Judge were not preserved for appellate review as a matter of law. In any event, we have examined the ‍‌​​‌​‌​‌​‌​​​​‌‌​​‌‌​​​​‌​‌‌‌‌​‌​‌‌‌​​​​‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​​‌​​‌​​‌​‌​‌​‌​‌‌​‌​‌‌​‌​​‌​‌​‌‌​​‌​​​‍contentions and do not find they warrant reversal in the interest of justice. In view of the overwhelming evidence of guilt, there is no reasonable possibility that any error contributed to the defendant’s conviction (see, People v Crimmins, 36 NY2d 230, 237).

As to the defendant’s sentence, we note that the trial court correctly weighed the proper factors, including, inter alia, the defendant’s history ‍‌​​‌​‌​‌​‌​​​​‌‌​​‌‌​​​​‌​‌‌‌‌​‌​‌‌‌​​​​‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌‌​​‌​​‌​​‌​‌​‌​‌​‌‌​‌​‌‌​‌​​‌​‌​‌‌​​‌​​​‍and the circumstances of the case. Therefore, we find no basis for modification of the sentence (see, People v Suitte, 90 AD2d 80). Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.