Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Friedman, Catterson, Renwick, Freedman, JJ.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered April 7, 2010, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to an aggregate term of 10 years, unanimously affirmed.
At trial, Rashad Blake, the victim of the assault, testified as follows: Shortly after 11 p.m. on May 30, 2009, defendant approached Blake and his friend, Keith Edwards, on West 111th Street in Manhattan. Blake and Edwards had known defendant for several years. During a verbal exchange concerning Blake's brother, defendant removed a gun from his vest. Defendant stepped back and pointed his gun at Blake's waist. When Blake stepped forward, defendant hit Blake in the head with "the butt of the gun." As defendant hit him, Blake heard the gun "[go] off [with] a loud pop" sound. Blake fell to the ground, not knowing if he had been shot or hit with the gun. Blake lost consciousness, and when he came to, his head was bleeding and he was in pain. Edwards also testified and corroborated Blake's testimony. Edwards explained that the sound he heard when Blake was hit "was a gunshot like."[FN1]
A bystander called the police. A police officer who responded testified that Blake told him that he had been "hit over the head with a gun" and that "the gun had gone off." Although the area was searched, no gun or ballistics evidence was recovered.
Blake was brought to the hospital by ambulance. The physician who treated him testified that Blake told him he had lost consciousness for a short time after he was hit with the handgun. The physician further testified that he diagnosed Blake with a scalp laceration and head injury, and closed the wound with three staples. A detective who visited Blake in the hospital that evening testified that Blake told him that defendant had hit Blake over the head with a gun, causing the gun to discharge.
Following a jury trial, defendant was convicted of second-degree assault, and second-degree and third-degree criminal possession of a weapon. The People asked for the maximum sentence of 15 years. Defendant was adjudicated a second violent felony offender and sentenced to an aggregate term of 10 years.
On appeal, defendant argues that the People failed to prove his guilt with legally sufficient evidence. With regard to the assault conviction, defendant claims that the People failed to present evidence that Blake suffered "physical injury." With regard to the weapon possession convictions, defendant argues that the People did not present sufficient evidence that defendant possessed an "operable weapon" that "was loaded with live' ammunition." Defendant claims that as a result, the sentences imposed were excessive.
For the reasons set forth below, we find that all of the convictions were based on legally sufficient evidence. This Court's review of the legal sufficiency of trial evidence requires us to determine whether "any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People" (People v Williams, 84 NY2d 925, 926 ). Furthermore, it is "well settled that matters of credibility are reserved for the triers of fact, who have had an opportunity to observe the demeanor of the witnesses and are therefore in the best position to weigh their testimony" (People v Jones, 165 AD2d 103, 108 , lv denied 77 NY2d 962 ).
Initially, we note that defendant's argument that the victim did not suffer physical injury is unpreserved (see People v Gray, 86 NY2d 10, 19 ), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. To establish second-degree assault the People must prove beyond a reasonable doubt that defendant intentionally caused the victim to suffer physical injury by means of a dangerous instrument (see Penal Law § 120.05). " Physical injury' . . . means impairment of physical condition or substantial pain'" (People v Chiddick, 8 NY3d 445, 447 , quoting Penal Law § 10.00). Generally, issues of physical condition and substantial pain are questions for the trier of fact (People v Guidice, 83 NY2d 630, 636 ). Factors considered in resolving such issues include the subjective seriousness of a victim's wound and the medical treatment required (see id.). Pain need not be excruciating or incapacitating to support physical injury (see Chiddick, 8 NY3d at 447). Evidence that a victim's injury required medical attention, such as stitches, and caused him substantial pain, is generally sufficient to establish physical injury (see e.g. People v Stone, 45 AD3d 406 , lv denied 10 NY3d 817 ).
In this case, Blake testified that when defendant struck him on the head with the revolver, he temporarily lost consciousness and awoke bleeding and in pain. The physician and hospital records establish that his head was cut and that staples were used to close the wound. Blake further testified that when he woke the next morning, his jaw was swollen, his face was numb, and he had difficulty eating. He continued to have pain for the next two weeks and was unable to work for one week. In court, he pointed to a scar on the side of his head left by defendant's gun. The direct testimony of Blake, as well as that of the physician who treated him, provided the jury with sufficient evidence to conclude that Blake suffered "physical injury" within the meaning of the Penal Law.
As to the criminal possession of a weapon charges, the People presented sufficient evidence that defendant possessed an operable firearm. To establish defendant's guilt of criminal possession of a weapon in the second degree, the People must prove beyond a reasonable doubt that defendant possessed a loaded firearm outside his home or business, and that he intended to use it unlawfully against another (Penal Law § 265.03; People v Longshore, 86 NY2d 851, 852 ). To establish criminal possession of a weapon in the third degree, the People must prove that defendant possessed a firearm and had been previously convicted of a crime (Penal Law § 265.02). Proof of operability is an essential element of the crime of criminal possession of a weapon ...