People v. Powell

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered April 8, 1998, convicting him of robbery in the first degree, robbery in the second degree, criminal possession of a weapon in the fourth degree, and assault in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of assault in the third degree and. the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

As this Court previously held on the codefendant’s appeal (People v Terry, 263 AD2d 547), the evidence was legally insufficient to establish that the complainant suffered physical injury so as to support the conviction of assault in the third degree (see, Penal Law 120.00).

The evidence was legally sufficient to support the defendant’s conviction of the remaining counts (see, People v Contes, 60 NY2d 620). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt as to the remaining counts was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80). Joy, J. P., Sullivan, Friedmann and H. Miller, JJ., concur.