| People v Douglas |
| 2011 NY Slip Op 04870 [85 AD3d 1585] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CamilloDouglas, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), renderedSeptember 27, 2007. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofthree counts of assault in the second degree (Penal Law § 120.05 [3]). The convictionarises from an incident in which four correction officers attempted to restrain defendant in orderto conduct a "strip frisk" for suspected contraband and three of those officers sustained injuries.By failing to renew his motion for a trial order of dismissal after presenting evidence, defendantfailed to preserve for our review his contention that the evidence is legally insufficient toestablish that each of the victims sustained a physical injury (see People v Hines, 97NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, we conclude thatdefendant's contention is without merit. The evidence, which included testimony from therespective treating orthopedic surgeons of two of the victims and the treating chiropractor of thethird victim, established that each of the victims required medical treatment for his injuries. Oneof the victims continued treatment for an injured elbow for more than two years following theincident, and another victim required arthroscopic surgery to repair the damage to his knee thatresulted from the incident. The third victim's treating chiropractor testified that the injurysustained by that victim as a result of the incident "greatly exacerbated" his preexisting lowerback injury. We note that the victims each were on medical leave for several weeks following theincident. We therefore conclude that the evidence established that each of the victims sustained aphysical injury within the meaning of Penal Law § 10.00 (9), i.e., impairment of a physicalcondition or substantial pain (see Peoplev Bowen, 17 AD3d 1054, 1055-1056 [2005], lv denied 5 NY3d 759 [2005]; People v Liggins, 2 AD3d 1325,1326 [2003]; cf. People v Velasquez, 202 AD2d 1037 [1994], lv denied 83 NY2d1008 [1994], lv denied upon reconsideration 84 NY2d 940 [1994]), and thus that theconviction is supported by legally sufficient evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]). The sentence is not unduly harsh or severe. Present—Scudder,P.J., Centra, Peradotto, Gorski and Martoche, JJ.