People v. Jenkins , 765 N.Y.S.2d 303 ( 2003 )

Appeal from a judgment of Erie County Court (D’Amico, J.), entered June 8, 2001, convicting defendant after a nonjury trial of assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of assault in the second degree (Penal Law § 120.05 [2]). Defendant contends that the evidence is legally insufficient because the element of physical injury was not established as a matter of law. Defendant failed to move to dismiss the indictment on that ground and thus failed to preserve his contention for our review (see People v Gray, 86 NY2d 10, 19 [1995]). Although defendant raised that contention in his postverdict motion pursuant to CPL article 330, that motion also did not preserve his contention for our review (see People v Slavin, 299 AD2d 499 [2002]; People v Palompelli, 296 AD2d 557, 558 [2002], lv denied 99 NY2d 538 [2002]; People v Schultz, 266 AD2d 919 [1999], lv denied 94 NY2d 906 [1999]; see generally People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). We decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Present — Pine, J.P., Hurlbutt, Scudder and Hayes, JJ.