People v. Valentin

• Decision Date: 14 February 1994
• Citation: 607 N.Y.S.2d 954,201 A.D.2d 598
• Parties: The PEOPLE, etc., Respondent, v. Martin VALENTIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 954

607 N.Y.S.2d 954

201 A.D.2d 598

The PEOPLE, etc., Respondent, v. Martin VALENTIN, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 14, 1994.

Russell C. Morea, Kew Gardens, for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, Gary Fidel, and Claire Martin, of counsel), for respondent.

Before MANGANO, P.J., and ROSENBLATT, COPERTINO and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robinson, J.), rendered November 27, 1991, convicting him of assault in the second degree, criminal possession of stolen property in the fourth degree, unauthorized use of a vehicle in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim that the evidence of physical injury was insufficient to support the conviction for assault in the second degree is unpreserved for appellate review, as the defendant never specifically raised this issue at the trial (see, CPL 470.05[2]; People v. Balls, 69 N.Y.2d 641, 511 N.Y.S.2d 586, 503 N.E.2d 1017; People v. Reilly, 47 N.Y.2d 860, 861, 419 N.Y.S.2d 63, 392 N.E.2d 1246; People v. Peters, 175 A.D.2d 220, 221, 572 N.Y.S.2d 81). In any event, viewing the evidence adduced at the trial in the light most favorable to the People, we find that it was legally sufficient to establish that, as a result of his struggle with the defendant, the arresting officer suffered "physical injury" within the meaning of Penal Law § 10.00(9) (see, e.g., People v. Soto, 184 A.D.2d 673, 674, 584 N.Y.S.2d 877; People v. Morgan, 191 A.D.2d 649, 650, 595 N.Y.S.2d 237; People v. Scott, 162 A.D.2d 479, 556 N.Y.S.2d 171; People v. Lundquist, 151 A.D.2d 505, 506, 542 N.Y.S.2d 295; People v. Esquilin, 141 A.D.2d 838, 839, 530 N.Y.S.2d 177).

We also conclude that the defendant was not substantially prejudiced by the prosecutor's late disclosure of the complainant's supporting deposition regarding the value and location of damage to the stolen motor vehicle, and consequently reversal is not warranted (see, People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134; People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011; People v. Hernandez, 195 A.D.2d 573, 600 N.Y.S.2d 491). The prosecutor complied with the court's request to produce the complainant's deposition by the next morning. Although the disclosure was late, it occurred during the trial, before the defendant called his first witness, and at a time when the material was still useful to the defense. Before the defense counsel put on its case, the defense counsel was provided with an opportunity to review the deposition and to recall the complainant for...