People v. Sullivan

—Judgment unanimously modified on the law and as modified affirmed and new trial granted on count six of indictment in accordance with the following Memorandum: On appeal from a judgment convicting him of numerous charges relating to resisting arrest and the violation of an order of protection, defendant contends that the evidence is legally insufficient to establish that the victim sustained a physical injury within the meaning of Penal Law § 10.00 (9) to support the conviction of aggravated criminal contempt (Penal Law § 215.52) and assault in the third degree (Penal Law § 120.00 [1]). Defendant failed to preserve that contention for our review (see, People v Gray, 86 NY2d 10, 19). Were we to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]), we would conclude that it lacks merit. Defendant threw the victim down her cellar stairs and then threw a stereo speaker on top of her. County Court received without objection the medical records of the victim, which contain as part of the history: “complains of severe pain to elbow.” That evidence is legally sufficient to establish that the victim [918] sustained a physical injury, defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]).