| People v Blue (Kimberly) |
| 2004 NY Slip Op 50230(U) |
| Decided on April 1, 2004 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal by defendant from judgments of the District Court, Nassau County
(M. Fiechter, J.), rendered October 29, 2001, convicting her of assault in the third degree (Penal Law § 120.00 [1]), custodial interference in the second degree (Penal Law § 135.45 [2]) and harassment in the second degree (Penal Law § 240.26 [1]), and imposing sentences.
Judgments of conviction unanimously affirmed.
After reviewing the voir dire record as a whole, and giving due deference to the determination of the trial court, we are of the opinion that the lower court providently exercised its discretion by denying defendant's challenge for cause as to a prospective
juror (see People v Williams, 63 NY2d 882 [1984]; People v Escoto, 283 AD2d 962, 963 [2001]; People v Harris, 247 AD2d 630 [1998]).
Viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620 [1983]), we find that the evidence was legally sufficient to establish the defendant's guilt of assault in the third degree beyond a reasonable doubt as it established the nature of the victim's injury, the way it was inflicted, the duration of the pain and the treatment required. The foregoing provided the jury with a ready and sufficient basis to determine that the victim sustained "substantial pain" within the meaning of the statute (see Penal Law §§ 120.00 [1]; 10.00 [9]; People v Vasquez, 297 AD2d 297 [2002]; People v Lucci, 250 AD2d 780 [1998]; People v Nix, 156 AD2d 722 [1989]). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt on that charge was not against the weight of the evidence (see
CPL 470.15 [5]).
[*2]
Furthermore, inasmuch as the defendant failed to establish that the witness whom the People did not call at trial would offer noncumulative testimony favorable to
her (see People v Gonzalez, 68 NY2d 424 [1986]; People v Nichols, 254 AD2d 810 [1998]), the lower court did not improvidently exercise its discretion in denying defendant's request for a missing witness charge.
Decision Date: April 01, 2004