| People v Dove |
| 2011 NY Slip Op 05898 [86 AD3d 715] |
| July 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Donald M.Dove, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 14, 2010, upon a verdict convicting defendant of the crime of assault in thesecond degree.
Defendant was indicted for assault in the second degree after he punched a fellow inmate inthe face at the Broome County Jail. Convicted following a jury trial, he now appeals.
Defendant claims that he was denied a fair trial because the indictment referenced hisconfinement in a correctional facility and the procedures set forth in CPL 200.60 were notfollowed. CPL 200.60 (1) provides that "[w]hen the fact that the defendant has been previouslyconvicted of an offense raises an offense of lower grade to one of higher grade and therebybecomes an element of the latter, an indictment for such higher offense may not allege suchprevious conviction." Rather, the underlying crime must be charged in a special information andthe defendant must be arraigned on such information outside the presence of the jury (seeCPL 200.60 [2], [3]). Here, defendant was charged with assault in the second degree pursuant toPenal Law § 120.05 (7), which required the People to prove that, at the time of the assault,defendant was confined at a correctional facility pursuant to a charge or conviction of a crime.We have previously held that, where a defendant is charged with committing an assault while[*2]confined pursuant to a criminal conviction, CPL 200.60prohibits the indictment from alleging the defendant's confinement in a correctional facility(see People v Reynolds, 283 AD2d 771, 772 [2001], lvs denied 96 NY2d 866,923 [2001]; People v Gaddy, 191 AD2d 735, 736 [1993], lv denied 82 NY2d 718[1993]; People v Ali, 147 AD2d 847, 848 [1989]).
We find no reason why the requirements of CPL 200.60 should not apply where, as here, adefendant is confined at a correctional facility pursuant to pending criminal charges at the time ofthe claimed assault. In People v Cooper (78 NY2d 476, 483 [1991]), the Court ofAppeals extended the reach of CPL 200.60 to cover those situations where the enhancing elementof the higher grade offense is not the prior conviction itself, but rather conviction-related facts. Inso doing, the Court expressed its view that the practical operation of the statute's proceduralmandates must give effect to its protective purpose, which is to provide a defendant with anopportunity to shield himself or herself from "the likelihood of prejudice resulting from a jury'sknowledge that the defendant is a repeat offender" (id. at 484). In our view, CPL 200.60is addressed to this type of inferential prejudice flowing from the fact of defendant'sincarceration—whether pursuant to a conviction or a pending criminal charge (cf.People v Alshoaibi, 273 AD2d 871, 871-872 [2000], lv denied 95 NY2d 960 [2000][finding that, although the enhancing element of the charged crime was the revocation of thedefendant's license based upon his failure to submit to a chemical test, rather than revocationbased upon a prior conviction, provisions of CPL 200.60 were applicable to protect the jury fromlearning of this prejudicial information]; People v Orlen, 170 Misc 2d 737, 740-741[1996] [same]). Thus, we agree with defendant that the indictment improperly alleged that hewas incarcerated on a prior criminal charge, and that the procedures employed in CPL 200.60should have been followed.
Nevertheless, we deem the error to be harmless under the circumstances of this case. Theindictment was not read to the jury, nor was the nature of the underlying charged crimesdisclosed. Moreover, "[t]he setting, participants and witnesses to the incident underlying thecharge[ ] necessarily put the jury on notice that defendant was incarcerated" (People vReynolds, 283 AD2d at 772). As "the disclosure of defendant's status as an inmate at acorrectional facility was unavoidable in this situation," we discern no prejudice to defendant(id. at 772; see People v Richardson, 180 AD2d 902, 903-904 [1992]).
Defendant also argues that the conviction was against the weight of the evidence, specificallyclaiming that the People failed to establish that the victim sustained a "physical injury" as a resultof the attack.[FN*]Physical injury means an "impairment of physical condition or substantial pain" (Penal Law§ 10.00 [9]). "[W]hile 'slight or trivial pain' is insufficient, the '[p]ain need not. . . be severe or intense to be substantial' " (People v Rivera, 42 AD3d 587, 588 [2007], lv denied 9NY3d 880 [2007], quoting People vChiddick, 8 NY3d 445, 447 [2007]; see People v Jones, 79 AD3d 1244, 1245 [2010], lv denied16 NY3d 832 [2011]). "A variety of factors are relevant in determining whether physical injuryhas been established, including the injury viewed objectively, the victim's subjective descriptionof the injury and [his or] her pain, [*3]and whether the victimsought medical treatment" (People vDixon, 62 AD3d 1036, 1039 [2009], lv denied 12 NY3d 912 [2009] [internalquotation marks and citations omitted]; accord People v Stearns, 72 AD3d 1214, 1217 [2010], lvdenied 15 NY3d 778 [2010]).
Here, defendant twice punched the victim in the face, causing the victim's teeth to piercethrough and split his lip. The victim was brought to the medical unit of the jail and then to ahospital where the laceration on his lip was closed with a number of sutures and he was advisedto take pain medication. The victim explained that one of his front teeth remained loose for anextended period of time and that he experienced pain for nearly a week and a half following thealtercation. In light of this proof, we conclude that the weight of the evidence supports the jury'sfinding that the victim suffered a physical injury (see People v Jones, 79 AD3d at 1245;People v Stearns, 72 AD3d at 1217; People v Foster, 52 AD3d 957, 959-960 [2008], lv denied11 NY3d 788 [2008]).
Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: To the extent that defendantargues that the proof on this element was legally insufficient, his general motion to dismiss attrial was insufficient to preserve this issue for our review (see People v Gray, 86 NY2d10, 19 [1995]; People v Hardy, 57AD3d 1100, 1101 [2008], lv denied 12 NY3d 784 [2009]).