People v. Davis

—Judgment, Supreme Court, New York County (Rose Rubin, J.), rendered February 25, 1987, convicting defendant, after a jury trial, of two counts of robbery in the second degree (Penal Law § 160.10 [1], [2] [a]) and sentencing him to concurrent indeterminate prison terms of from 4 Vi to 9 years, unanimously affirmed.

*468Defendant and three or four others surrounded the complainant and indicated that they wanted to buy crack from him. After first denying that he was selling the drug and then agreeing to sell defendant a vial, complainant and defendant got into an argument over defendant’s attempt to pay less than the $10 demanded by the complainant. The evidence revealed that the defendant escalated the dispute by either making threatening motions or punching the complainant, and that his companions then joined in the attack, throwing the complainant to the ground and beating and kicking him. During the assault, complainant’s money, jewelry and other objects were taken, and he was left severely bruised and bleeding.

Upon examination of this record, we reject defendant’s claim that the fight began spontaneously and independent of any intent to commit robbery. Rather, the evidence supports the prosecution’s theory that the intent to commit robbery was formed before the fight began. The defendant did not seek a charge from the court on justification, and there is no evidence, in any event, to support his claims that his actions were justified and that he could not have retreated in complete safety. (See, People v Harris, 134 AD2d 369, 370, Iv denied 70 NY2d 955.) Further, we are satisfied that the victim’s injuries constitute "physical injury” as defined by Penal Law § 10:00 (9) (People v Elliot, 156 AD2d 313).

With respect to defendant’s argument that he was wrongfully excluded from a critical part of his trial, the presentation of supplemental jury instructions, the record fails to provide a sufficient factual basis for this claim. Concur—Kupferman, J. P., Milonas, Asch, Kassal and Smith, JJ.