People v. Rivera

May 11, 1992
Versions:

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered February 23, 1990, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, we find that there was legally sufficient evidence adduced at trial to establish that the complainant suffered "physical injury” within the meaning of Penal Law § 10.00 (9) (see, Matter of Philip A., 49 NY2d 198, 200; People v Contes, 60 NY2d 620, 621). The testimony of the complainant establishes that the defendant knocked her down and grabbed her by the neck, causing her to fall backward onto the subway steps. As a result of her struggle with the defendant, her elbow was bruised requiring treatment by the paramedics at the train station. Moreover, she still has a scar on her elbow. She also suffered from what she described as "real pain” in her lower back for approximately one month after the robbery.

The scar alone is impairment sufficient to constitute physical injury (see, People v Jones, 173 AD2d 359; People v Tejeda, 165 AD2d 683, affd 78 NY2d 936). In addition, the duration of the pain (one month) is evidence of its severity and provides a basis for the inference that the pain was substantial (see, People v McNair, 147 AD2d 593, 594; People v Hope, 128 AD2d 638, 639).

The defendant’s sentence was in all respects proper (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contention is unpreserved for appellate review (see, CPL 470.05 [2]) and, in any event, does not warrant reversal in the exercise of our interest of justice jurisdiction. Harwood, J. P., Balletta, Lawrence and Santucci, JJ., concur.