| People v Kraatz |
| 2017 NY Slip Op 01117 [147 AD3d 1556] |
| February 10, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Michael C.Kraatz, Also Known as Michael Kraatz, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered July24, 2014. The judgment convicted defendant, upon a jury verdict, of robbery in the seconddegree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of robbery inthe second degree (Penal Law § 160.10 [2] [a]), defendant contends that theconviction is not supported by legally sufficient evidence that the victim sustained a physicalinjury. We reject that contention. The victim testified that defendant grabbed her arm during therobbery and kept "squeezing and squeezing" while threatening to kill her. She further testifiedthat she felt like the bones in her arm were going to break, that the resulting pain was"excruciating" and "like 9 to 10 to 11" on a scale of one to ten, and that her arm was bruisedafterward. We conclude that her testimony is legally sufficient to establish that her pain wassubstantial, i.e., "more than slight or trivial," and thus that she sustained a physical injury (People v Chiddick, 8 NY3d 445,447 [2007]; see Penal Law § 10.00 [9]; People v Henderson, 77 AD3d 1311, 1311 [2010], lv denied17 NY3d 953 [2011]; cf. People vLunetta, 38 AD3d 1303, 1304 [2007], lv denied 8 NY3d 987 [2007]). Viewingthe evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we also reject defendant's further contention that the verdict is against theweight of the evidence on the issue of physical injury (see generally People v Bleakley,69 NY2d 490, 495 [1987]). Although the victim did not seek any medical treatment as a result ofthe incident or miss any time from work, the jury was entitled to credit her testimony concerningthe extent of the pain she experienced (see People v Guidice, 83 NY2d 630, 636 [1994];People v Smith, 45 AD3d 1483,1483 [2007], lv denied 10 NY3d 771 [2008]; see also People v Spratley, 96 AD3d 1420, 1421 [2012]).
We reject defendant's contention that he was denied effective assistance of counsel by hisattorney's failure to make certain objections at trial (see generally People v Taylor, 1 NY3d 174, 176-177 [2003];People v Benevento, 91 NY2d 708, 712-714 [1998]), and we conclude that the sentenceis not unduly harsh or severe.
All concur except Curran, J., who dissents and votes to modify in accordance with thefollowing memorandum.
Curran, J. (dissenting). I respectfully dissent. In my view, the People failed to establishbeyond a reasonable doubt that the victim suffered a physical injury, i.e., either "impairment ofphysical condition or substantial pain" (Penal Law § 10.00 [9]), as is required for aconviction of robbery in the second degree under Penal Law § 160.10 (2) (a). Iwould therefore modify the judgment by reducing the conviction to robbery in the third degree(§ 160.05; see CPL 470.15 [2] [a]) and vacating the sentence, and I wouldremit the matter to County Court for sentencing on the conviction of robbery in the third degree(see CPL 470.20 [4]).
In my view, the majority's decision conflicts with the decisions reached by this Court in People v Coleman (134 AD3d1555, 1556 [2015], lv denied 27 NY3d 963 [2016]), People v Haynes (104 AD3d 1142,1143 [2013], lv denied 22 NY3d 1156 [2014]), and People v Lunetta (38 AD3d 1303, 1304 [2007], lv denied 8NY3d 987 [2007]). The majority relies on People v Chiddick (8 NY3d 445, 447-448 [2007]), but that relianceis misplaced. That case is distinguishable inasmuch as the defendant in Chiddick bit andbroke the victim's finger, thereby causing the victim to bleed. Thus, although the Court ofAppeals considered the victim's subjective pain as an important factor, the injury defendantinflicted, viewed objectively, was "[p]erhaps [the] most important [factor]" (Chiddick, 8NY3d at 447). Moreover, unlike here, the victim in Chiddick "sought medical treatmentfor the wound defendant inflicted—an indication that his pain was significant"(id.). Finally, the Court in Chiddick noted that "the whole point of the bite was toinflict as much pain as [defendant] could" (id. at 448). I have no doubt that this was afrightening event for the victim, but to the extent that the majority's decision endorses an entirelysubjective standard for determining whether a victim suffered a physical injury, I cannot agreewith it. Present—Whalen, P.J., Smith, Carni, DeJoseph and Curran, JJ.