| People v Boucher |
| 2012 NY Slip Op 05431 [97 AD3d 597] |
| July 5, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dwayne Boucher, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, andKimberly Zelnick of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.),rendered March 23, 2009, convicting him of robbery in the first degree and assault in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing (Gerges, J.), of that branch of the defendant's omnibus motion which was tosuppress physical evidence.
Ordered that the judgment is affirmed.
The defendant's contention that a detective's entry into his apartment was unlawful isunpreserved for appellate review to the extent that the defendant now argues that his consent tothe entry was not voluntary (see CPL 470.05 [2]; People v Jones, 48 AD3d 1116, 1116 [2008], affd 11 NY3d822 [2008]; People v Philips, 30AD3d 618, 619 [2006]). In any event, any error in failing to suppress the physical evidenceseized from the defendant's apartment was harmless beyond a reasonable doubt. The evidence ofthe defendant's guilt, without reference to the alleged error, was overwhelming, and there is noreasonable possibility that the alleged error might have contributed to the defendant's conviction(see People v Crimmins, 36 NY2d 230, 237 [1975]).
The defendant contends that the evidence of "physical injury," an element of the crime ofassault in the second degree (Penal Law § 120.05 [6]), was legally insufficient. Thiscontention is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Rambali, 27AD3d 582, 583 [2006]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish that the complainant sustained a physical injury (see Penal Law§ 10.00 [9]; People vChiddick, 8 NY3d 445, 447-448 [2007]; People v Valencia, 50 AD3d 1163, 1164 [2008]; People v Ricco, 11 AD3d 343, 344[2004]; People v Pike, 173 AD2d 649, 650 [1991]). Moreover, upon our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt with respect toassault in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]; People v Velasquez, 79AD3d 1153, 1154 [2010]; People v Valencia, 50 AD3d at 1164).
The defendant's remaining contentions either are without merit or have been rendered [*2]academic in light of our determination. Rivera, J.P., Eng, Lott andCohen, JJ., concur.