| People v Boney |
| 2014 NY Slip Op 05197 [119 AD3d 701] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Murphy Boney, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andEmil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered February 24, 2010, convicting him of robbery in the second degreeand criminal possession of stolen property in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, by reducing the defendant'sconviction of robbery in the second degree under count one of the indictment to robberyin the third degree and by vacating the sentences imposed upon the defendant'sconvictions under counts one and two of the indictment; as so modified, the judgment isaffirmed, and the matter is remitted to the Supreme Court, Queens County, for sentencingon the conviction of robbery in the third degree and resentencing on the conviction ofcriminal possession of stolen property in the third degree.
Contrary to the People's contention, the defendant preserved for appellate review hisclaim that the Supreme Court erred in failing to conduct an individual inquiry of thejurors to determine whether a comment made by a complainant as he passed the jurywhen exiting the courtroom compromised the jurors' ability to render an impartial verdict(see People v Buford, 69 NY2d 290, 299 [1987]; People v Ventura, 113 AD3d443, 446 [2014]). However, the court providently exercised its discretion in denyingthe defendant's request to conduct such an inquiry and instructing the jury to disregardany comment the jurors may have heard (see People v Mejias, 21 NY3d 73, 79-80 [2013]; People v Argendorf, 76 AD3d1100, 1100 [2010]; Peoplev Benet, 45 AD3d 1449, 1451 [2007]; People v Young Min Kwak, 29 AD3d 385, 385-386[2006]).
However, we agree with the defendant that the People failed to present legallysufficient evidence of physical injury to sustain his conviction of robbery in the seconddegree (see Penal Law § 160.10 [2] [a]; People v Contes, 60NY2d 620, 621 [1983]). "Physical injury" is defined as "impairment of physicalcondition or substantial pain" (Penal Law § 10.00 [9]). The subjectcomplainant testified that he sustained an injury to his left ring finger after he wasattacked from behind and fell to the ground. The complainant went to the hospital afterthe incident, where his bruised finger was bandaged and placed in a splint, but X raysrevealed no broken bones and there was no evidence presented that he was prescribedpain medication. A "bruise" was still present four years after the incident, but thecomplainant only testified generally that he felt pain on his hand and arms immediatelyafter the incident, and he did not testify that the injury limited or diminished his ability touse his finger for any length of time. Under these circumstances, there was insufficientevidence from which a jury could infer that the complainant suffered substantial pain orimpairment [*2]of physical condition (see Matter ofPhilip A., 49 NY2d 198, 200 [1980]; People v Young, 99 AD3d 739, 740 [2012]; People v Bedford, 95 AD3d1226, 1226-1227 [2012]; People v Taylor, 83 AD3d 1105, 1106 [2011]; People v Baksh, 43 AD3d1072, 1073-1074 [2007]; People v Richmond, 36 AD3d 721, 722 [2007]; People v Baez, 13 AD3d463, 464 [2004]; cf. Matter of Jamal M., 187 AD2d 654, 655 [1992];People v Talibon, 138 AD2d 426, 427 [1988]). Accordingly, the defendant'sconviction of robbery in the second degree under count one of the indictment must bereduced to the lesser-included offense of robbery in the third degree (see PenalLaw §§ 160.10 [2] [a]; 160.05).
Contrary to the defendant's contention, the delay between his conviction of criminalpossession of stolen property in the third degree and sentencing was not unreasonableunder the circumstances here, and he was not entitled to dismissal of that count of theindictment on that basis (see CPL 380.30 [1]; People v Drake, 61 NY2d359, 365-366 [1984]; People vFriel, 53 AD3d 667, 669 [2008]; cf. People ex rel. Harty v Fay, 10NY2d 374, 378-379 [1961]; People v Morillo, 94 AD3d 909, 912 [2012]; People v Davis, 29 AD3d814, 816 [2006]).
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in sentencing him as a persistent felony offender (see Penal Law§ 70.10 [2]; Peoplev Dixon, 107 AD3d 735, 736 [2013]; People v Bazemore, 100 AD3d 915, 915 [2012]). However,since the court took into consideration the seriousness of the defendant's conviction ofrobbery in the second degree under count one of the indictment when sentencing him onhis conviction of criminal possession of stolen property in the third degree under counttwo of the indictment, we vacate the sentences imposed under both counts and remit thematter to the Supreme Court, Queens County, for sentencing on the conviction ofrobbery in the third degree and resentencing on the conviction of criminal possession ofstolen property in the third degree (see People v Singh, 78 AD3d 1080, 1082 [2010]). Eng,P.J., Leventhal, Lott and Roman, JJ., concur.