| People v Boley |
| 2013 NY Slip Op 03109 [106 AD3d 753] |
| May 1, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Boley, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin,and Bruce Alderman of counsel; Jason D. Krumenaker on the brief), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Mangano, Jr., J.), rendered January 21, 2011, convicting him of assault in the thirddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, andthe matter is remitted to the Supreme Court, Kings County, for the purpose of entering anorder in its discretion pursuant to CPL 160.50.
After a jury trial, the defendant was convicted of assault in the third degree(see Penal Law § 120.00). In fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]; People vRomero, 7 NY3d 633 [2006]), we nevertheless accord great deference to thefactfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we find that the verdict of guiltwas against the weight of the evidence, since the evidence presented at trial did notestablish, beyond a reasonable doubt, that the complainant sustained a "physical injury"within the meaning of Penal Law § 10.00 (9). Physical injury is defined as"impairment of physical condition or substantial pain" (Penal Law § 10.00 [9]).The complainant testified that he sustained bruising and scraping to his right arm, neck,and back, but he did not seek any medical treatment or miss any work. The complainantalso provided no details that would corroborate his subjective description of pain, nor didhe take any pain medication. Accordingly, there was insufficient evidence that thecomplainant suffered a "physical injury" (see Matter of Philip A., 49 NY2d 198,199-200 [1980]; People vTaylor, 83 AD3d 1105, 1106 [2011]; People v Zalevsky, 82 AD3d 1136, 1137 [2011]; People v Baksh, 43 AD3d1072, 1073-1074 [2007]; People v Richmond, 36 AD3d 721, 722 [2007]; People v Baez, 13 AD3d463, 464 [2004]; People v Briggs, 285 AD2d 651, 652 [2001]), and thejudgment must be reversed and the indictment dismissed.
In light of our determination, we need not address the defendant's remainingcontentions, including those raised in his pro se supplemental brief. Rivera, J.P.,Leventhal, Austin and Miller, JJ., concur.