People v. Bidwell , 153 A.D.2d 960 ( 1989 )

Mahoney, P. J.

Appeal from a judgment of the County Court of Broome County (Monserrate, J.), rendered August 16, 1985, upon a verdict convicting defendant of the crime of assault in the second degree.

Defendant was indicted for assault in the second degree as the result of an altercation on December 29, 1984 in the City of Binghamton, Broome County. Defendant was specifically charged with causing physical injury by kicking the victim with his shoes, the dangerous instrument required under Penal Law § 120.05 (2). Following the prosecution’s case, defendant moved for dismissal on the ground that there was no proof that he was wearing shoes or kicked the victim with his shoes as alleged in the indictment. County Court initially reserved decision, ultimately denying the motion. Defendant was convicted as charged and sentenced to an indeterminate term of incarceration of 1 to 3 years. This appeal followed.

Defendant contends that County Court erred in denying his dismissal motion. We disagree. The victim testified that he was kicked ”[h]ard”. The incident occurred at the end of December and there was testimony that the temperature was cold, thereby foreclosing the possibility that the attacker had bare feet. The victim required 70 stitches to repair his injuries. From these facts, the jury could have concluded that defendant’s kicking was done while wearing shoes. We note that defendant’s brother, testifying on defendant’s behalf, admitted during cross-examination that he had previously testified that defendant was wearing cowboy boots on the night of the attack. Accordingly, we find no error in County Court’s denial of defendant’s motion for dismissal.

Judgment affirmed. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.