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People v McKoy, 2023 NY Slip Op 03126 [217 AD3d 1410]

June 9, 2023

Appellate Division, Fourth Department

[*1]

The People of the State of New York, Respondent,

v

Willie D. McKoy, Appellant. (Appeal No. 2.)

Cambareri & Brenneck, Syracuse (Melissa K. Swartz of counsel), for defendant-appellant.

James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston of counsel), for respondent.

Appeal from a judgment of the Supreme Court, Ontario County (Craig J. Doran, J.), rendered October 16, 2018. The judgment convicted defendant upon a jury verdict of assault in the second 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 assault in the second degree (Penal Law § 120.05 [7]). Contrary to defendant’s contention, the conviction is supported by legally sufficient evidence ( see People v Bleakley , 69 NY2d 490, 495 [1987]). Specifically, the People presented evidence including the victim’s medical records, the testimony of the victim, and a video recording of the incident, which established that defendant struck and kicked the victim repeatedly, leaving him with a fractured nose, contusions on his head and chest, and a temporary loss of vision, with minor visual impairment continuing through the time of the trial. This evidence establishes that the victim suffered a “[p]hysical injury” as defined in Penal Law § 10.00 (9) ( see People v Vives , 1 AD3d 1014 , 1015 [4th Dept 2003]; see also People v McIntosh , 158 AD3d 1289 , 1290 [4th Dept 2018], lv denied 31 NY3d 1015 [2018]). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). Finally, contrary to defendant’s contention, the sentence is not unduly harsh or severe. Present—Whalen, P.J., Lindley, Montour, Ogden and Greenwood, JJ..