The People of the State of New York, Respondent, v. Charles Johnson, Appellant

The People of the State of New York, Respondent, v Charles Johnson, Appellant. [MAJORITY] Appeal by the defendant from a judgment of the County Court, Westchester County (Callahan, J.), rendered November 7, 1985, convicting him of assault in the third degree and endangering the welfare of a child, after a nonjury trial, and imposing sentence. Ordered that the judgment is affirmed. The conviction for assault in the third degree was based upon proof that the defendant kicked his toddler son several times in the leg, breaking the child’s thigh. The defendant does not challenge this conviction on appeal. The child was hospitalized in traction for approximately three weeks and was released with a cast on his leg. Approximately one month later the defendant cut the cast off the child’s leg before it was completely healed. When the defendant’s wife protested, the defendant told her "Jesus told me it was healed and to take it off”. A week later he gave the same explanation to the child’s doctor. The sole contention of the defendant on this appeal, that he established the affirmative defense under Penal Law § 260.15, is without merit. This issue was not raised at trial and is thus unpreserved for our review (see, CPL 470.05; People v Jones, 81 AD2d 22). In any event, the defendant did not establish by a preponderance of the evidence that he was a member or adherent of an organized church or religious group whose tenets prescribe prayer as the primary means of treating illness. Mollen, P. J., Mangano, Rubin and Sullivan, JJ., concur.