| People v Young |
| 2012 NY Slip Op 06629 [99 AD3d 739] |
| October 3, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Damian Young, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, andDavid O. Leiwant of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.),rendered October 4, 2010, convicting him of robbery in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is modified, on the law, by reducing the defendant's conviction ofrobbery in the second degree under the first count of the indictment to robbery in the thirddegree, and vacating the sentence imposed under the first count of the indictment; as so modified,the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, forresentencing on the conviction of robbery in the third degree.
Contrary to the defendant's contention, the Supreme Court did not improperly curtail theright of his counsel to participate in the jury selection process (see CPL 270.15 [1];see also People v Jean, 75 NY2d 744 [1989]; People v Thompson, 45 AD3d 876, 877 [2007]).
However, we agree with the defendant that the People failed to present legally sufficientevidence of "physical injury" to sustain his conviction of robbery in the second degree(see Penal Law § 160.10 [2] [a]; People v Contes, 60 NY2d 620, 621[1983]). "Physical injury" is defined as "impairment of physical condition or substantial pain"(Penal Law § 10.00 [9]). Although the question of whether physical injury has beenestablished is generally for the jury to decide, "there is an objective level . . . belowwhich the question is one of law" (Matter of Philip A., 49 NY2d 198, 200 [1980]).
The complainant testified, inter alia, that during the subject incident, the defendant either"punched" or "pushed" her, causing her to fall to the ground. The complainant went to a hospitalafter the incident and underwent X-rays, but she did not receive treatment, apart from receivingTylenol. The complainant testified that after this incident, she experienced generalized pain andsoreness in her neck, arms, legs, and feet. The complainant did not testify to the degree orduration of the pain, other than generally describing the pain as having "intensified" after shereturned to work one week after the incident.[*2]
Under these circumstances, there was insufficientevidence from which a jury could infer that the complainant suffered substantial pain orimpairment of physical condition as a result of the subject incident (see Matter of PhilipA., 49 NY2d at 200; People vBedford, 95 AD3d 1226 [2012], lv denied 19 NY3d 944 [2012]; People v Taylor, 83 AD3d 1105,1106 [2011]; People v Pierrot, 31AD3d 582 [2006]; People vAlmonte, 23 AD3d 392, 393-394 [2005]). Accordingly, the defendant's conviction ofrobbery in the second degree under the first count of the indictment must be reduced to thelesser-included offense of robbery in the third degree (see Penal Law §§160.10 [2] [a]; 160.05), and the matter must be remitted to the Supreme Court, Kings County, forresentencing on the conviction of robbery in the third degree.
In light of our determination, we need not reach the defendant's remaining contention.Angiolillo, J.P., Florio, Belen and Roman, JJ., concur.