People v Pisciotta

People v Pisciotta 2006 NY Slip Op 08887 [34 AD3d 389] November 30, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

The People of the State of New York, Respondent,
v
Nicholas Pisciotta, Appellant.

—[*1]

Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered February 6, 2003, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second felony offender, to a term of seven years, unanimously affirmed.

The verdict was based on legally sufficient evidence. The evidence established that, among other acts of violence, defendant threw a board at the victim, with the intent to cause physical injury thereby. The evidence, including medical testimony, also warranted the conclusion (see People v Williams, 84 NY2d 925 [1994]) that some of the victim's injuries resulted from being struck by the board. We further conclude that these injuries satisfied the requirement of "physical injury" (see Penal Law § 10.00 [9]; People v Guidice, 83 NY2d 630, 636 [1994]).

The challenged portions of the People's summation did not deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).

Defendant's argument concerning jury selection is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would reject it on the same grounds upon which we rejected a similar argument on the jointly tried codefendants' appeal (People v Oliveri, 29 AD3d 330 [2006], lv denied 7 NY3d 760, 792 [2006]). Concur—Tom, J.P., Saxe, Friedman, Catterson and McGuire, JJ.