People v. Morales

Appeal by defendant from a judgment of the Supreme Court, Kings County (Hellenbrand, J.), rendered June 8, 1982, convicting him of assault in the first degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Having failed to object to the sufficiency of the trial court’s instructions to the jury at trial, defendant failed to preserve this claim for appellate review (see, People v Aleschus, 55 NY2d 775, 776), and the facts of this case do not warrant an invocation of our interest of justice jurisdiction. Additionally, *497under these particular circumstances, we find that the court did not abuse its discretion in allowing Dr. Czaykowsky to examine the victim in the presence of the jury. Assault in the first degree (Penal Law § 120.10) requires a finding of serious physical injury, which is defined by Penal Law § 10.00 (10) as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement”. The victim’s present status and her future healing propensities were thus both material and relevant (see, People v Williams, 96 AD2d 740, 741). Further, we note that it was the defendant who initially insisted that the victim be brought before the jury for their observation. O’Connor, J. P., Weinstein, Niehoff and Fiber, JJ., concur.