People v. Vasquez
| Decision Date | 05 August 2002 |
| Citation | 745 N.Y.S.2d 920,297 A.D.2d 297 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>ABSALON VASQUEZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the judgment is modified, on the law, by vacating the conviction of burglary in the second degree under the third count of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt of burglary in the first degree and assault in the third degree beyond a reasonable doubt, as the evidence established the nature of the victim's injury, the way it was inflicted, and the duration of the pain. This provided the jury with a ready and sufficient basis to determine that the victim suffered "substantial pain" as a result of the defendant's attack (Penal Law § 10.00 [9]; see People v Brown, 243 AD2d 749; People v Boles, 198 AD2d 837; People v Coward, 100 AD2d 628).
As correctly conceded by the People, the third count of the indictment charging the defendant with burglary in the second degree constituted an inclusory concurrent count of the conviction of burglary in the first degree (see People v Green, 56 NY2d 427, 430; People v Henry, 151 AD2d 501, 502). Thus, the conviction of that crime must be vacated, and that count of the indictment dismissed.
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.
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