| People v Spratley |
| 2012 NY Slip Op 04502 [96 AD3d 1420] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kent D.Spratley, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), renderedNovember 17, 2010. The judgment convicted defendant, after a nonjury trial, of assault in thesecond degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toOneida County Court for further proceedings.
Memorandum: On appeal from a judgment convicting him upon a nonjury verdict of assaultin the second degree (Penal Law § 120.05 [2]), defendant contends that the verdict isagainst the weight of the evidence because any injury to the victim was not caused by a deadlyweapon and such injury did not constitute a " '[p]hysical injury' " within the meaning of PenalLaw § 10.00 (9). Viewing the evidence in light of the elements of the crime in this nonjurytrial (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention (see generally People vBleakley, 69 NY2d 490, 495 [1987]). We conclude that a finding by County Court that thevictim's injury was not caused by a deadly weapon would have been unreasonable (seegenerally Danielson, 9 NY3d at 348; Bleakley, 69 NY2d at 495).
With respect to the element of physical injury, we note that " '[p]hysical injury' " is defined as"impairment of physical condition or substantial pain" (Penal Law § 10.00 [9]). Substantialpain means "more than slight or trivial pain[, but it] need not . . . be severe orintense to be substantial" (People vChiddick, 8 NY3d 445, 447 [2007]). "A variety of factors are relevant in determiningwhether physical injury has been established, including 'the injury viewed objectively, thevictim's subjective description of the injury and [his or] her pain, and whether the victim soughtmedical treatment' " (People vDixon, 62 AD3d 1036, 1039 [2009], lv denied 12 NY3d 914 [2009]; seeChiddick, 8 NY3d at 447-448).
Here, the victim was injured by a bullet that grazed his face, "an experience that wouldnormally be expected to bring with it more than a little pain" (Chiddick, 8 NY3d at 447).He went to the hospital for treatment of his injury and received several stitches. The victimtestified that he was in "excruciating pain" at the hospital and that he still has pain, as well asdifficulty eating and talking. The hospital records admitted in evidence, however, demonstratedthat the victim described his pain as "zero" out of 10 and that he was not prescribed any painmedication. [*2]We conclude that, although an acquittal based onthe lack of a physical injury would not have been unreasonable, it cannot be said that the courtfailed to give the evidence the weight it should be accorded (see People v Dove, 86 AD3d 715, 717 [2011], lv denied 17NY3d 903 [2011], reconsideration denied 18 NY3d 882 [2012]; People v Moye, 81 AD3d 408,408-409 [2011], lv denied 16 NY3d 861 [2011]; see also People v Slater, 13 AD3d 732, 734 [2004], lvdenied 4 NY3d 803 [2005]; see generally Danielson, 9 NY3d at 348-349;Bleakley, 69 NY2d at 495).
As defendant correctly notes, the court failed to rule on his renewed motion to dismiss theindictment based on allegedly prejudicial conduct during the grand jury proceeding. Contrary tothe People's contention, pursuant to People v Concepcion (17 NY3d 192, 197-198 [2011]) andPeople v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849[1999]), we cannot deem the court's failure to rule on the renewed motion as a denial thereof (see People v Chattley, 89 AD3d1557, 1558 [2011]). We therefore hold the case, reserve decision and remit the matter toCounty Court for a ruling on defendant's renewed motion to dismiss the indictment.Present—Centra, J.P., Fahey, Peradotto, Carni and Sconiers, JJ.