People v. Wilkens

May 1, 1997
Versions:239 A.D.2d 105
657 N.Y.S.2d 599
1997 N.Y. App. Div. LEXIS 4472

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered June 13, 1995, convicting defendant, after a jury trial, of two counts of assault in the second degree, and sentencing him, as a second felony offender, to consecutive terms of 31/2 to 7 years, unanimously affirmed.

We reject defendant’s challenge to the sufficiency of the evidence of "physical injury” (Penal Law § 10.00 [9]) with respect to one of the victims. There was ample evidence that the child in question suffered substantial pain, a fact which may be readily inferred, through the exercise of common sense, from all the circumstances, including the age of the child and the force of the blows (People v Tomczak, 189 AD2d 926, lv denied 81 NY2d 977; see also, People v Wade, 232 AD2d 290).

*106Defendant’s claim that the People violated the court’s Sandoval ruling is unpreserved, since defendant did not make the nature of his generalized objections known to the court at any point in the trial, and is without merit. The prosecution was justified in asking defendant whether he had ever hit two women in the past, since defendant’s direct testimony tended to give the jury the misleading impression that he had no violent or abusive behavior in his background, thereby "opening the door” to examination on the subject (see, People v Mojias, 184 AD2d 424, lv denied 81 NY2d 764; People v Santiago, 169 AD2d 557, lv denied 77 NY2d 1000).

Defendant’s request for a missing witness charge was properly denied. The request was untimely and, in any event, failed to make a prima facie showing of any of the requirements for such a charge (see, People v Gonzalez, 68 NY2d 424). Concur—Murphy, P. J., Ellerin, Nardelli, Williams and Andrias, JJ.