People v. Terry

—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 reversing the conviction for assault in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

We agree with the defendant’s contention that 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). Thus, the conviction of assault in the third degree is reversed and that count of the indictment dismissed.

The defendant contends that the People’s proof was factually insufficient due to alleged inconsistencies in the testimony of the witnesses. Upon the exercise of our factual review power, however, we are satisfied that the verdict as to the remaining counts of which the defendant was convicted was not against the weight of the evidence (see, CPL 470.15 [5]). Mangano, P. J., O’Brien, Sullivan and Goldstein, JJ., concur.