People v. Washington

Judgment unanimously affirmed. Memorandum: We have examined defendant’s claims on appeal and find them to be without merit. The evidence at the suppression hearing sufficiently demonstrated that defendant was not interrogated in violation of his right to counsel. Additionally, the evidence that complainant’s jaw was swollen and caused him pain for two weeks was sufficient to establish "physical injury” (see, Penal Law § 10.00 [9]; People v James, 133 AD2d 507, 509, lv denied 70 NY2d 933; People v Goico, 122 AD2d 576). Defendant was not entitled to have the charge of criminal facilitation in the fourth degree (Penal Law § 115.00) submitted to the jury as a lesser included offense (see, People v Palmer, 116 AD2d 767, 769, Iv *953denied 67 NY2d 1055; People v Chavis, 99 AD2d 584, 586), or as an unindicted charge. Finally, the court did not abuse its discretion in fashioning a Sandoval ruling (People v Sandoval, 34 NY2d 371) or in sentencing defendant as a second felony offender to concurrent terms of TVi to 15 years on a class B and two class C felonies. (Appeal from judgment of Monroe County Court, Egan, J. — burglary, first degree; robbery, second degree.) Present — Dillon, P. J., Callahan, Boomer, Green and Davis, JJ.