People v. McBroom , 160 A.D.2d 620 ( 1990 )

—Judgment, Supreme Court, New York County (Jay Gold, J.), rendered September 3, 1986, after a jury trial, convicting defendant of robbery in the first degree (Penal Law § 160.15 [3]) and robbery in the second degree (Penal Law § 160.10 [1], [2] [a] [two counts]) and imposing concurrent, indeterminate terms of from 2 to 6 years and lVz to 4 Vi years (two), respectively, is unanimously affirmed.

Defendant and several others attacked and beat the complainant during the early morning hours of April 29, 1986, after accosting him near the West Side Highway in Greenwich Village. Defendant was immediately apprehended with two others, and positively identified as one of the assailants.

The victim had been beaten repeatedly with weapons and with sticks which were 36 inches long, and had sustained hairline fractures and severe leg bruises. Although he originally characterized his pain as minor, the victim described multiple bruises, welts, and swelling of his legs, arms and back, and later stated that his pain was extreme.

We are persuaded that the victim’s testimony was sufficient to establish the substantial pain required to satisfy the element of physical injury in the charge of robbery in the second degree. (Penal Law § 10.00 [9]; § 160.10 [2] [a]; People v McDowell, 28 NY2d 373.) The assault was not comprised of mere slaps, shoves or kicks (cf., Matter of Philip A., 49 NY2d 198, 200) and was manifested by objective indicia of injury (People v Rojas, 61 NY2d 726, 727-728), which created an issue for jury determination. (People v Oquendo, 134 AD2d 203.) Nor was the legal sufficiency of the element of physical injury defeated by the People’s failure to introduce hospital records. (See, People v Greene, 70 NY2d 860.)

Defendant’s challenge to the trial court’s charge on reasonable doubt was not preserved as a matter of law (CPL 470.05 [2]; People v Creech, 60 NY2d 895) and we decline to reach it in the interest of justice. Concur—Murphy, P. J., Ross, Rosenberger, Kassal and Wallach, JJ.