People v. Franklin , 149 A.D.2d 617 ( 1989 )

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered February 24, 1986, convicting him of robbery in the second degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is modified, on the law, by reducing the defendant’s conviction to robbery in the third degree, vacating the sentence imposed, and remitting the matter to the Supreme Court, Kings County, for resentencing.

The evidence adduced by the prosecution indicated that the complainant was hit on the head and "passed out”, but regained consciousness "a minute” later and did not display any impairment of physical function. The complainant testified that he felt dizzy and achy for about "four or five hours”, and there was slight bleeding from his head. However, the complainant did not go to the hospital or seek medical attention. Under these circumstances, the evidence was legally insufficient to establish that the complainant suffered physical injury within the meaning of Penal Law § 10.00 (9) (People v Goins, 129 AD2d 733; People v Suarez, 119 AD2d 839). Since the evidence was sufficient to establish the defendant’s guilt of robbery in the third degree, we have reduced the robbery in the second degree conviction to one for robbery in the third degree. We have examined the defendant’s remaining arguments including those raised in his supplemental pro se brief, and find them either to be unpreserved for appellate review or without merit (People v Sierra, 143 AD2d 1065; People v Burnett, 136 AD2d 888; People v Suitte, 90 AD2d 80). Mangano, J. P., Bracken, Brown and Harwood, JJ., concur.