People v. Kyser , 727 N.Y.S.2d 672 ( 2001 )

—Judgment unanimously affirmed. Memorandum: Contrary to the contention of defendant, his conviction of assault in the third degree based on an accomplice theory (Penal Law §§ 20.00, 120.00 [1]) is supported by legally sufficient evidence (see, People v Allah, 71 NY2d 830, 831-832; People v Ortega, 258 AD2d 335, lv denied 93 NY2d 1045). Defendant’s additional contention that the evidence of physical injury is legally insufficient to support the conviction is not preserved for our review (see, People v Gray, 86 NY2d 10,19), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, GPL 470.15 [6] [a]). Defendant’s farther contention concerning the illegality of the consecutive sentences imposed is moot in that Supreme Court has granted defendant’s motion pursuant to CPL 440.20 and ordered that the sentences run concurrently. (Appeal from Judgment of Supreme Court, Erie County, Tills, J. — Assault, 3rd Degree.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Kehoe and Burns, JJ.