People v. Whited
| Decision Date | 12 November 2010 |
| Citation | 78 A.D.3d 1628,910 N.Y.S.2d 626 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Andrew N. WHITED, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
78 A.D.3d 1628
The PEOPLE of the State of New York, Respondent,
v.
Andrew N. WHITED, Defendant-Appellant.
Supreme Court, Appellate Division, Fourth Department, New York.
Nov. 12, 2010.
Timothy P. Donaher, Public Defender, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant-Appellant.
Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, SCONIERS, AND PINE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him following a jury trial of assault in the first degree (Penal Law § 120.10[1] ) and assault in the second degree (§ 120.05[1] ), defendant contends that the victim did not sustain a serious physical injury within the meaning of Penal Law § 10.00(10) and thus that the conviction of both counts of assault is not supported by legally sufficient evidence. Defendant failed to preserve that contention for our review, however, inasmuch as he failed to raise it in his motion for a trial order of dismissal ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). Although defendant further contends that preservation was not required because a successful motion to dismiss would have merely resulted in a conviction of the lesser included offense of assault in the third degree ( see generally CPL 290.10[1] ), we nevertheless conclude that preservation was required ( see Gray, 86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919; cf. People v. Ross, 39 A.D.3d 1243, 1244, 835 N.Y.S.2d 787, lv. denied 9 N.Y.3d 850, 840 N.Y.S.2d 777, 872 N.E.2d 890).
In any event, we conclude that defendant's contention that the victim did not sustain a serious physical injury is without merit. According to the evidence presented by the People at trial, defendant "stomped" the victim and kicked him in the head at least 10 times and at most 25 times, causing the victim's head to strike the pavement, and the victim spent 15 days in the hospital, followed by 8 days of rehabilitation. One of the victim's treating physicians testified that the victim suffered from a contusion to the brain that could have resulted in his death and that, in fact, the physician had previously seen patients die from contusions sustained under similar circumstances. Moreover, one of the victim's other treating physicians testified that the victim suffered from short-term memory loss and concentration problems for a period of 2 1/2 weeks following the incident....
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