People v Witt

People v Witt 2008 NY Slip Op 08984 [56 AD3d 324] November 18, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

The People of the State of New York, Respondent,
v
Thomas Witt, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Natalie Rea of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered September 20, 2006, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of seven years, unanimously affirmed.

Defendant's argument that the People failed to prove the element of physical injury is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find that the verdict was based on legally sufficient evidence. Furthermore, the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility. Physical injury may be established through a victim's uncorroborated testimony (see People v Guidice, 83 NY2d 630, 636 [1994]). The victim testified that defendant banged her head against a concrete or brick wall, causing a lump on the back of her head which lasted about two weeks, and for which she sought medical attention (see People v Chiddick, 8 NY3d 445 [2007]; People v Stapleton, 33 AD3d 464 [2006], lv denied 7 NY3d 904 [2006]).

We perceive no basis for reducing the sentence. Concur—Saxe, J.P., Nardelli, Moskowitz, Renwick and Freedman, JJ.