The People of the State of New York, Respondent, v. John Arena, Appellant

The People of the State of New York, Respondent, v John Arena, Appellant. [727 NYS2d 629] [MAJORITY] —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered November 17, 1999, convicting him of conspiracy 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 vacating the conviction of assault in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed. Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the defendant’s conviction of conspiracy in the fourth degree. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt on the charge of conspiracy in the fourth degree was not against the weight of the evidence (see, CPL 470.15 [5]). However, the People did not adduce legally sufficient evidence to establish that the complainant suffered physical injury so as to support a conviction of assault in the third degree (see, Penal Law § 10.00 [9]; § 120.00). There was no evidence presented as to the impairment of the complainant’s physical condition or the degree or duration of the complainant’s pain (see, People v Bruce, 162 AD2d 604). The defendant’s remaining contentions are without merit. Santucci, J. P., Goldstein, Florio and Crane, JJ., concur.