| People v Mercado |
| 2012 NY Slip Op 02609 [94 AD3d 502] |
| April 10, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Samuel Mercado, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Cassandra Mullen, J.), rendered August 24, 2010,convicting defendant, after a jury trial, of assault in the third degree, and sentencing him to a termof six months, unanimously modified, as a matter of discretion in the interest of justice, to theextent of reducing the sentence to a period of three years' probation, and otherwise affirmed.
The factual allegations contained in the misdemeanor information were sufficient to satisfythe physical injury element of assault in the third degree. The information recited that "defendantstruck informant . . . on his face with a closed fist," and that "as a result ofdefendant's actions, he suffered swelling and bruising to the left side of his face and bruising andswelling to his left eye as well as experienced annoyance, alarm and fear for his physical safety."
These allegations were sufficient to warrant the conclusion that the victim sufferedsubstantial pain. As in People v Henderson (92 NY2d 677 [1999]), based on theallegations, "a jury could certainly infer that the victim felt substantial pain" (id. at 680).We note that "substantial pain" (Penal Law § 10.00 [9]) simply means "more than slight ortrivial pain" (People v Chiddick, 8NY3d 445, 447 [2007]).
We find the sentence excessive to the extent indicated. Concur—Andrias, J.P.,Friedman, Acosta, Freedman and Richter, JJ.