| People v Brown |
| 2012 NY Slip Op 04022 [95 AD3d 1229] |
| May 23, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Herman Brown, Appellant. |
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Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Matthew Sweet of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum,J.), rendered May 6, 2010, convicting him of assault in the second degree and criminalpossession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's sole contention on this appeal is that the evidence was legally insufficient tosupport the finding that the complainant suffered "physical injury," an element of the crime ofassault in the second degree (Penal Law § 120.05 [2]). The necessary element of "'[p]hysical injury' " is defined by Penal Law § 10.00 (9) as either the "impairment ofphysical condition or substantial pain" (see People v McDowell, 28 NY2d 373, 375[1971]). "Impairment of physical condition" does not require a victim's incapacitation (Peoplev Tejeda, 78 NY2d 936, 938 [1991] [internal quotation marks omitted]). " '[S]ubstantial pain'cannot be defined precisely, but it can be said that it is more than slight or trivial pain," although"[p]ain need not, however, 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 Matter of Philip A., 49 NY2d 198, 200 [1980]; People v Monserrate, 90 AD3d785, 787 [2011]).
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 theelement of "physical injury." The testimony at trial established that the defendant stabbed thecomplainant with a knife in the left side under his rib cage during an altercation, leaving apenetrative wound of approximately one inch. Shortly thereafter, according to the medicalrecords submitted into evidence, the complainant was taken to the hospital, where, inter alia, hewas administered pain medication, underwent laparoscopic surgery under anesthesia to explorethe extent of any damage, and his pain level was recorded by hospital staff as reaching as high asa "7" on a scale of 1 to 10. Upon his discharge from the hospital the following day, thecomplainant was prescribed pain medication. Under these circumstances, there was legallysufficient evidence that the complainant [*2]suffered substantialpain and, therefore, sustained a physical injury (see People v Chiddick, 8 NY3d at 446;see also People v Kenner, 77 AD3d853 [2010]; People v Williams,69 AD3d 662 [2010]; Matter ofAshley M., 35 AD3d 612 [2006]). Rivera, J.P., Belen, Sgroi and Miller, JJ., concur.