People v. Flowers

— Appeal from a judgment of the County Court of Chemung County (Danaher, Jr., J.), rendered December 11, 1989, convicting defendant upon his plea of guilty of the crime of assault in the second degree. Defendant’s challenge to the sufficiency of the indictment was not preserved for appellate review insofar as he failed to raise an objection thereto at the time of his guilty plea (see, CPL 470.05 [2]; People v Di Noia, 105 AD2d 799, lv denied 64 NY2d 759, cert denied 471 US 1022; People v Torres, 96 AD2d 604). In any event, defendant’s claim that the broomstick handle used in the assault was not a dangerous instrument under the Penal Law (see, Penal Law § 120.05 [2]) is without merit. The circumstances under which the handle was used made it capable of causing serious physical injury (see, Penal Law § 10.00 [13]; People v Carter, 53 NY2d 113; People v Naylor, 120 AD2d 940, lv denied 69 NY2d 714); defendant was therefore properly charged under Penal Law § 120.05 (2). Defendant’s remaining contentions have been considered and rejected as lacking in merit. Mahoney, P. J., Casey, Weiss, Levine and Harvey, JJ., concur. Ordered that the judgment is affirmed.