| People v Monserrate |
| 2011 NY Slip Op 09154 [90 AD3d 785] |
| December 13, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v HiramMonserrate, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and JohnnetteTraill of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum,J.), rendered December 4, 2009, convicting him of assault in the third degree, after a nonjurytrial, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with several counts of assault in the second degree and assault inthe third degree arising from a domestic incident between the defendant and the complainant, hisgirlfriend, on December 19, 2008. The incident occurred inside the defendant's apartment, andcontinued into the common areas of his apartment building, where a surveillance system recordedthe actions of the defendant and the complainant; the images were downloaded onto a DVD,without sound, which was entered into evidence at a nonjury trial. At the beginning of therecording, the complainant appeared to be uninjured before she and the defendant entered theapartment. The complainant later emerged, bleeding from facial lacerations and holding a towelto her face with her left hand. She ran down a stairwell and headed toward the door of adownstairs neighbor. The defendant followed her, grabbed her right arm forcefully, and pulledher in the opposite direction, toward the front door of the building. The complainant resisted andattempted to grab the bannister of the stairway with her left hand, but the defendant dragged heraway, causing her arm to strike the bannister and drop the towel. The defendant continued to pullthe complainant through the hallway toward the front vestibule, where the complainant's left armand leg made contact with the interior door before the defendant dragged her through both theinterior and exterior doors. The facial expressions of the complainant are captured on thesurveillance video.
Additional evidence adduced by the People included medical evidence of the complainant'sfacial lacerations and injuries to her left forearm, which consisted of bruises and an abrasion,described as a "skin tear" or a "scrape." The downstairs neighbor testified that she heard a"frantic" ringing of her doorbell three times, after which she heard a loud scream that trailedaway; she looked through the peephole and saw the bloody towel on the stair. The complainanttestified that, before she entered the apartment, she was drunk but had no injuries to her face orarms. The [*2]prosecutor did not ask her to explain how shereceived the facial injuries while inside the apartment, but elicited testimony that the complainantasked the defendant to call an ambulance after her face was injured; specifically, the complainanttestified that the defendant said he would drive her to the hospital, and she left the apartmentahead of him. With regard to the surveillance video, the complainant testified that the defendantwas pulling her to take her to the hospital for her own good and was not dragging or hurting her.Testimony of other witnesses established that, although the nearest hospital was approximatelyone-half mile from the defendant's building, he drove the complainant to a hospital 14 milesaway, and instead of driving to the emergency entrance, parked on the street outside the mainentrance.
At the close of the evidence, the Supreme Court acquitted the defendant of all chargespertaining to the facial injuries, and found him guilty of one count of assault in the third degree,upon finding that the defendant "recklessly" caused injury to the complainant by "forciblydragging her by the arm," and based on the complainant's injuries suffered during the portion ofthe incident that took place in the common areas of the building. The Supreme Court expresslyfound that the complainant suffered "substantial pain" and cited various factors in support of thatfinding, including the complainant's facial expressions and apparent screaming and crying asdepicted in the surveillance video, the defendant's "violent and very forceful dragging of thecomplainant" who "is a woman of slight frame compared to that of the defendant," thecomplainant's resistance and her apparent attempt to seek help from the neighbor, the bruisingand skin tearing on the arm caused by the defendant's actions, and the fact that the defendantdragged her when she was in a "weakened state due to severe facial injuries," which "furtherinflicted . . . an exacerbation" of those injuries. In addition, the Supreme Courtfound that the defendant, who was "well known in that community, having served as a publicofficial" there, manifested his concern "to keep . . . things under the radar" bydriving the complainant away from that community, choosing not to call the 911 emergencytelephone number, and driving the complainant to a distant hospital, where the defendant avoidedthe emergency entrance. Finally, the Supreme Court declined to credit that portion of thecomplainant's testimony in which she endeavored to absolve the defendant.
On appeal, the defendant contends that the "physical injury" element of the crime of assaultin the third degree was not established by legally sufficient evidence, and that, for the samereason, the verdict on that count was against the weight of the evidence. A person is guilty ofassault in the third degree, as defined in Penal Law § 120.00 (2), when he or she"recklessly causes physical injury to another person" (Penal Law § 120.00 [2]). Physicalinjury is defined as "impairment of physical condition or substantial pain" (Penal Law §10.00 [9]). " '[S]ubstantial pain' cannot be defined precisely, but . . . it is more thanslight or trivial pain" and "need not . . . be severe or intense to be substantial" (People v Chiddick, 8 NY3d 445,447 [2007]). "Whether the 'substantial pain' necessary to establish an assault charge has beenproved is generally a question for the trier of fact" (People v Rojas, 61 NY2d 726, 727[1984]; see People v Krotoszynski,43 AD3d 450, 452-453 [2007]; People v Coward, 100 AD2d 628 [1984]). "Thesubjective reaction of the victim is but one factor for the [factfinder] to consider," and a findingof substantial pain may be inferred from objective evidence (People v Rojas, 61 NY2d at727-728). Factors to be considered include the nature of the physical injury, the circumstances inwhich it was inflicted, and the defendant's motive (id.; see People v Chiddick, 8NY3d at 447-448; People v Gill, 54AD3d 965, 966 [2008]).
Here, viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish everyelement of the crime of assault in the third degree, including "physical injury," defined as"substantial pain." Moreover, upon the exercise of our factual review power, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]). The evidence presented as to the complainant's weakened state from severe facialinjuries, the manner in which the injuries to her arm were inflicted, the defendant's motive as acontributing factor to the degree of force he used and the exacerbation of the complainant'sinjuries, and the visual depiction of the complainant's facial expressions in reaction to thedefendant's acts, provided the factfinder with a sufficient basis to infer that the complainantsuffered "substantial pain" (Penal Law § 10.00 [9]; see People v Henderson, 92NY2d 677, 680 [1999]; People v Rojas, 61 NY2d at 727; People v Nelson, 69 AD3d 762,763 [2010]; People v Vasquez, 297 AD2d 297, 298 [2002]). Moreover, in fulfilling ourresponsibility [*3]to conduct an independent review of the weightof the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People vLane, 7 NY3d 888, 890 [2006]; People v Mateo, 2 NY3d 383, 410 [2004],cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Angiolillo, J.P., Balkin, Dickerson and Cohen, JJ., concur.