| People v Rahman |
| 2011 NY Slip Op 04280 [84 AD3d 1119] |
| May 17, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v NajibRahman, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'HaraGillespie, and Chad E. Silverman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Silber, J.),rendered May 27, 2009, convicting him of attempted robbery in the second degree and attemptedgrand larceny in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's conviction of attempted robbery in the second degree required proof ofphysical injury (see Penal Law §§ 110.00, 160.10 [2]; see also People vMiller, 87 NY2d 211 [1995]). Physical injury is defined as "impairment of physicalcondition or substantial pain" (Penal Law § 10.00 [9]). Although "substantial pain" mustbe "more than slight or trivial pain" it need not be "severe or intense to be substantial"(People v Chiddick, 8 NY3d 445, 447 [2007]). "Impairment of physical condition,"moreover, does not require "a victim's incapacitation" (People v Tejeda, 78 NY2d 936,938 [1991]).
Contrary to the defendant's contention, the evidence was legally sufficient to establish thatthe complainant suffered physical injury during the course of the attempted robbery (seePeople v Chiddick, 8 NY3d 445, 447 [2007]; People v Guidice, 83 NY2d 630, 636[1994]; People v Greene, 70 NY2d 860, 862-863 [1987]; People v Valencia, 50AD3d 1163, 1164 [2008]; cf. People v Cheeks, 161 AD2d 657 [1990]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt of attempted robbery in the second degree was not against the weight of theevidence (see People v Romero, 7 NY3d 633 [2006]; People v Andrews, 236AD2d 735, 735-736 [1997]; cf. People v Bumbury, 263 AD2d 512, 513 [1999]).
The testimony established that the defendant grabbed the complainant around the throat withboth of his hands and strangled her, holding her back by force. The complainant testified that shewas unable to breathe for about a minute, and a struggle ensued during which the complainantmade numerous attempts to get the defendant's hands off her neck. She lost both shoes during thecourse of the struggle, [*2]ripped her jeans, and suffered a "largebruise" on her hip. The bruise on her hip took about a month to heal. About eight hours after theattack, the complainant first started experiencing "intensive pain" in her neck which lasted forabout a week and one-half. During this time she was unable to sleep, drive, play with her son, orwork as a sculptor. The complainant sought treatment from her homeopath and made the first ofnumerous visits to her acupuncturist a week later for the purpose of managing the pain. Thus, theevidence established that the complainant suffered "physical injury" as a result of herconfrontation with the defendant (Penal Law § 10.00 [9]). Angiolillo, J.P., Chambers,Austin and Miller, JJ., concur.