| People v Pettine |
| 2008 NY Slip Op 03773 [50 AD3d 1517] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James Pettine,Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), renderedMarch 14, 2003. The judgment convicted defendant upon a jury verdict of, inter alia, assault inthe third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, assault in the third degree (Penal Law § 120.00 [1]) and endangering the welfareof a child (§ 260.10 [1]). Contrary to the contentions of defendant, the evidence is legallysufficient to support his conviction of those counts (see generally People v Bleakley, 69NY2d 490, 495 [1987]). The victim testified that defendant bent her over a sink, choked her,threatened to kill her, and attempted to attack her with scissors and knives. The incident occurredin the presence of their two-year-old son, who was crying and screaming. The victim went to theemergency room both shortly after the incident and two days later, and she also sought treatmentfrom her physician. She testified that she had severe back pain for more than two weeks, as wellas severe pain in her throat and jaw and difficulty swallowing, which lasted 1½ to 2 weeks.We thus conclude that the evidence is legally sufficient to establish that the victim sustained aphysical injury, i.e., "impairment of physical condition or substantial pain" to support the assaultconviction (Penal Law § 10.00 [9]; see People v Black, 304 AD2d 905, 906, 908[2003], lv denied 100 NY2d 578 [2003]; People v Cancer, 232 AD2d 875, 876[1996], lv denied 89 NY2d 984 [1997]), and that defendant knowingly acted in a mannerthat was likely to result in harm to the child, to support the conviction of endangering the welfareof a child (see Penal Law § 260.10 [1]; People v Bray, 46 AD3d 1232, 1234 [2007]; People v Betters, 41 AD3d 1040,1041 [2007]; see generally People v Johnson, 95 NY2d 368, 371-372 [2000]).
Also contrary to defendant's contention, the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495). Defendant failed to preserve for ourreview his contention that County Court erred in charging the jury with respect to the countcharging defendant with endangering the welfare of a child (see CPL 470.05 [2]), and wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Present—Scudder, P.J., Smith, Centra, Peradottoand Pine, JJ.