| People v Perry |
| 2014 NY Slip Op 07689 [122 AD3d 775] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eli Perry, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Modica, J.), rendered March 23, 2012, as amended April 2, 2012, convicting him ofassault in the second degree (two counts), attempted assault in the second degree (twocounts), criminal possession of stolen property in the third degree (two counts), criminalpossession of stolen property in the fourth degree (two counts), unauthorized use of avehicle in the third degree, resisting arrest, criminal mischief in the fourth degree, andaggravated unlicensed operation of a motor vehicle in the third degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction ofassault in the second degree under count two of the indictment, vacating the sentenceimposed thereon, and dismissing that count of the indictment; as so modified, thejudgment is affirmed.
On February 21, 2011, the defendant attempted to evade the police during a car chasethrough Queens. During the chase, he twice struck the pursuing police vehicle with thestolen vehicle he was driving. After abandoning his vehicle, the defendant fled on footfrom the pursuing police officers and struggled with them as they placed him underarrest.
The defendant contends that the evidence was legally insufficient to prove that eitherpolice officer involved in the vehicle chase suffered a "physical injury" (Penal Law§ 10.00 [9]) as required for a conviction of assault in the second degreeunder Penal Law § 120.05 (3). Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), weagree with the defendant that it was legally insufficient to establish, beyond a reasonabledoubt, that Sergeant Aaron Klein sustained a "physical injury" within the meaning ofPenal Law § 10.00 (9) as alleged in count two of the indictment. Physicalinjury is defined as "impairment of physical condition or substantial pain" (Penal Law§ 10.00 [9]). Sergeant Klein did not testify at trial. His medical records,which were admitted into evidence, indicated that he suffered a laceration to a finger onhis right hand, with abrasions, pain, and swelling. While it is true that, to constitutephysical injury, the pain caused by such a wound need not "be severe or intense to besubstantial" (People vChiddick, 8 NY3d 445, 447 [2007]), it must, at a minimum, cause "more thanslight or trivial pain" (id. at 447) or, to some extent, result in the impairment ofthe use of the finger (see Penal Law[*2]§ 10.00 [9]). No evidence was introduced thatthe injuries sustained by Sergeant Klein caused him more than trivial pain, or that the useof his finger was impaired by these injuries (see People v Zalevsky, 82 AD3d 1136, 1137 [2011]; People v Baksh, 43 AD3d1072 [2007]; People vRichmond, 36 AD3d 721, 722 [2007]). Accordingly, the defendant's convictionof assault in the second degree under count two of the indictment must be vacated, andthat count of the indictment must be dismissed.
However, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient toestablish that Officer Matthew Lewis sustained a "physical injury." Moreover, infulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we find that,contrary to the defendant's contention, the verdict of guilt as to assault in the seconddegree with respect to Officer Lewis was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). Officer Lewis testified at trial that he "bang[ed]" or "smash[ed]" hisright hand on cement pavement while trying to subdue the defendant and sufferedlacerations, scrapes, bleeding, and swelling to his hand for which he received medicalattention. He testified that his hand was "pretty sore" and "pretty swollen," and that hemissed one week of work as a result of the injuries. Photographs of his injuries admittedinto evidence showed that his hand was still swollen two weeks after the incident.
Furthermore, the verdict of guilt of attempted assault in the second degree undercounts 3 and 4 of the indictment and criminal mischief in the fourth degree under count27 of the indictment was not against the weight of the evidence (see id.). The factthat the defendant was acquitted of certain counts did not undermine the weight of theevidence supporting the jury's verdict of guilt in this regard (see People v Abraham, 22NY3d 140 [2013]; People vMuhammad, 17 NY3d 532, 545 [2011]; People v Rayam, 94 NY2d 557[2000]; People v Tucker, 55 NY2d 1, 7 [1981]).
Viewing the record as a whole, we conclude that the defendant was not deprived ofthe effective assistance of counsel (see People v Benevento, 91 NY2d 708, 712[1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
The sentences imposed upon the convictions of assault in the second degree undercount one of the indictment, as well as attempted assault in the second degree (twocounts), criminal possession of stolen property in the third degree (two counts), criminalpossession of stolen property in the fourth degree (two counts), unauthorized use of avehicle in the third degree, resisting arrest, criminal mischief in the fourth degree, andaggravated unlicensed operation of a motor vehicle in the third degree were notexcessive (see People v Suitte, 90 AD2d 80, 83 [1982]).
The defendant's remaining contention has been rendered academic in light of ourdetermination. Skelos, J.P., Leventhal, Hinds-Radix and Maltese, JJ., concur.